Trial Magazine

Standing in front of the jury with a portable projection screen at your side, you push the button of your clicker and aim it at your laptop. A thick black horizontal line appears in the center of the screen, dividing it in half. You push the button again. Thin black lines extend from the thick line as blue, red, green, and orange squares appear. Dates sit above each square. Black text fragments and phrases nest inside each square. The whole thing looks like the branch of an abstract painter’s fruit tree, with square fruit.

For the next 20 minutes, you tell the jurors everything you think they need to know about your colorful, very detailed damages time line. But in their struggle to make sense of your gestures, words, colors, and text, they tire. None of them will remember what you’ve said. When the trial is over, you will look back at this moment and realize that you weren’t communicating with them. This was a failure.

So, if this is how bad things can get when we use demonstrative exhibits to present damages, why even bother? Maybe a flip chart, photos, or a chalk board is all that is needed. Here’s why: Science has proven that people learn better when they see and hear a well-organized presentation featuring voice, images, and textual elements.¹ Our senses evolved to work together—vision influences hearing, for example—which means we learn best if we stimulate several senses at once.²

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One study of juror memory found that retention increased 650% when oral communication was combined with visual communication.

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Studies show that multisensory (multimedia) presentations are the way to go. Groups in multisensory environments always do better than groups in unisensory environments.³ Their recall is more accurate, more detailed, and longer lasting—even 20 years later.⁴ Problem-solving ability improves too.⁵ One study of juror memory found that retention increased 650% when oral communication was combined with visual communication.⁶ All of this shows that if we are going to motivate jurors to return the damages verdict we ask for, then we need a well-thought-out plan that uses demonstrative exhibits to show them our client’s case.

Step One: Know the Law

The first part is to understand the two categories of demonstrative exhibits and choose which of these (or both) you intend to use. Then know the evidentiary and procedural rules applicable to showing this evidence in your trial presentation. This is easier said than done because courts do not treat all demonstratives similarly.

Demonstrative exhibits are merely an aid to understanding facts.⁷ They generally take one of two forms under the rules of evidence.⁸ One form, called a “summary exhibit,” acts as a kind of substitute evidence admitted in place of the actual evidence from which it was derived.⁹ Tables, charts, and graphs of numerical or other empirical data are typical examples. Anyone who has had a life care expert testify from a table of rehabilitation expenses during a personal injury trial has dealt with this sort of exhibit. When qualified and authenticated by the expert, it is admitted as substantive evidence and may be given to the jury during deliberations. Federal Rule of Evidence 1006 governs the use of these exhibits.¹⁰

To successfully present this evidence in trial as substantive evidence, you must establish a proper foundation for the expert’s use of the exhibit and be prepared to timely disclose it along with your expert report so the defense has a full opportunity to question your expert about it.¹¹ In addition, as one court noted, Federal Rule of Evidence 26 “will be read to require the disclosure and discovery of exhibits which summarize or support an expert opinion.”¹²

The second form of demonstrative evidence, the focus of our inquiry here, is called a “pedagogical summary” because it facilitates the presentation of evidence or helps explain evidence already in the record.¹³ Transcripts of audio ¬recordings and video slide presentations fall under this category.¹⁴ Their purpose—to present evidence and persuade a jury—is the very thing that garners defense objections and results in the judge excluding them. So it’s absolutely imperative to know the rules of evidence well enough to protect your visuals in trial.

Federal Rule of Evidence 611 applies to exhibits that merely function to advance a party’s argument or presentation at trial.¹⁵ State courts have analogous rules.¹⁶ Although straightforward, a court will use these rules to exclude demonstrative evidence when it concludes that a party uses content that is not grounded in the evidence,¹⁷ does not give the court or the other side time to review or raise objections to the content,¹⁸ or inserts other content that is overly prejudicial or risks a mistrial.¹⁹

But the news is not all bad. Courts have granted wide creative latitude with PowerPoint presentations when, for example, the defendant does not timely object to the presentation’s content or when the court believes that the presentation is faithful to the evidence or does not mischaracterize it.²⁰ However, keep in mind a few things.

Many defense lawyers like to object on-the-fly, thinking that they don’t need to see your presentation in advance and would rather object during your trial presentation to disrupt your train of thought. To defeat this tactic, make it a practice to share your demonstrative exhibits before trial in keeping with the court’s pretrial orders.²¹ Then, before the jury is impaneled, make a record of the fact that you shared your visuals. This is also an opportunity to hash out defense objections with the court or to note in the record that the defense offered no objections.

Avoid phrases or textual highlights that offer extreme commentary, finger pointing, overly suggestive inferences, or blatant emotional appeals. “In other words, if it would be improper to make a particular statement [verbally], it would likewise be improper to display it [visually].”²² If you intend on superimposing commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence.²³

Also consider, for example, exhibits that feature summary clips or select sequences from an original audio recording. You might presume that there would be no harm—and therefore no objection—to providing the jury with portions of an original, transcribed audio recording. Not so. If the transcript was not prepared by a neutral third party, the court may refuse to let you use it.²⁴ And although courts have allowed parties to use unilaterally made exhibits in trial when the transcript is faithful to the audio recording,²⁵ be safe and use a neutral party to transcribe it beforehand, or seek agreement with the defense to use the transcript you’ve made.

Always prepare a trial brief or appropriate pretrial motion, and request the use of your demonstrative exhibits so you can anticipate their smooth presentation in trial. Because the use of these exhibits falls within the court’s discretion, you must convince the court to side with you.²⁶ Take control to avoid being controlled.

Step Two: Know the Fundamental Rules of a Memorable Presentation

There are three basic rules that make presentations memorable.

Your presentation is never about you. It’s about the jurors, your audience. Courtroom presentations must be viewed as an opportunity to connect, not as an opportunity to prove how brilliant you are.²⁷ If you approach a jury presentation with a genuine desire to serve the jury’s best interests, everything you do and say will harmonize and ring clear. You will maximize the opportunity to impart your ideas in their minds and, most important, their hearts. The next time you prepare the damages portion of your closing argument, ask yourself: “Is my presentation as clear and concise as I can make it? Does it focus on the essence—not the detail—of my client’s loss? Is what I am about to show them window dressing or gut-wrenching facts?” When in doubt, always go for the gut-wrenching facts.

Use the power of story. Don’t just place descriptive text and colorful images on digital slides and start telling the jurors what you think they need to know about your case. Tell them a story with the assistance of those slides. Allow each slide to highlight one central idea or moment in the story of the case. The goal here is to show—not tell—the jurors what took place without overwhelming them with accurate but meaningless data. Give only the essential information that best conveys what you want the jury to know. Pictures—without any text—of the defendant’s cell phone, your client’s crumpled car, and a table full of the pain medications he or she takes will help the jury visualize and contextualize what happened as you present the story of how the defendant’s driving permanently harmed your client. The combination of spoken words and images makes your presentation memorable.

Statistics and information do not move hearts and minds. They’re abstractions in need of context. Once a presentation (and fact-based data) is put into story form, “it has structure, creates an imbalance the audience wants to see resolved, and identifies a clear gap that the audience can fill.”²⁸ Story is the key to persuasion because it makes the abstract concepts of liability, causation, and damages concrete, relatable, and knowable.²⁹

Know what to keep and what to cut. It sounds simple, but it takes a disciplined mind and lots of practice to build a presentation that is faithful to the meaning—as opposed to the details—of a case. This is accomplished by framing and editing a presentation with the jury in mind.

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Jurors don't want to know everything you know. Jurors want a simple presentation that tells them why they need to take action.

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A picture of a metal prosthetic leg and the scarred joint that fits inside it usually tells the story of a plaintiff’s suffering better than a stack of medical records or a time line of hospital visits that chart the details of the amputation. Jurors don’t want to know everything you know. Jurors want a simple presentation that tells them why they need to take action. And they don’t want to work too hard to figure it out.³⁰ Let go of cluttering ideas, even if you love them, for the sake of making the presentation better.³¹ Better means clearer. 

Step Three: Think Ahead to Compel Juror Attention

The final step in creating a strong demonstrative involves how jurors absorb images and information. The goal is to not just invite juror attention but to compel it.

Sensory input is essential to grabbing the jurors’ attention. In our ordinary lives, we encounter the pull of sensory input every day. The red and blue lights of a police car cut through the glow of a mile of headlights on the freeway.

“[U]nusual or bright colors, textures, size, motion, loud sounds, harmony, or orientation of objects force us to look.”³² Use this in your presentations. Rather than having different colors of text plastered across different dazzling backgrounds, your slides should be simple. Black text on a white background or white text on a black background work well because contrast and legibility are increased (which makes it easier for the jurors to read and absorb).³³

For example, when you are showing how the economic and noneconomic losses add up, make it simple: Use text only. Avoid distractions such as multiple colors, moving text, firm logos, and font size changes. Keep the jurors focused on your message, not on the features of your slide presentation.

For the same reasons, consider reducing the amount of text used on a slide. Less is always more. Use plenty of space. It makes the content easy for the jurors to access. Let color come from the pictures of the evidence, not from the typeface. Also, when possible, avoid combining text and images. Put text on separate slides, unless doing so would create confusion. Let the image speak for itself. With these techniques, you compel the jurors to study your images, rather than struggle to discern them. For example, if you have an image of your client’s surgically repaired leg or arm following post-op recovery, there’s no need to give the image a header that says “Post-Op Recovery.” The header is just noise. The photo of the ruined limb is the focus, so let the jurors see it.

Another simple but powerful way to compel juror attention is to ask questions during your presentation. By asking questions such as “do you remember when we heard . . .” or “what did we see when . . .”, we engage the jurors and help them build long-term memory.³⁴ The questions offer cues that capture the jurors’ attention (internally) and “promote long-term memory because of a process called elaborate encoding.”³⁵ This means the jurors are creating additional memory traces for the specific topic you are discussing.³⁶

Finally, fight against the tendency to mimic the boring, dry presentations that have become common in court. This is not a matter of style over substance. “Offer your audiences something they expect (and can predict), as well as something that takes them by surprise. Use linguistic, perceptual, cultural, or social norms to break conventions,”³⁷ and you will keep them engaged. For example, jurors expect your presentation to be professional and restrained in tone. But that does not mean you should avoid moments of emotional intensity. If you have it, use sound, such as the 911 tape, and images of crumpled vehicles when describing how your client was badly injured in a truck crash.

The use of demonstratives in trial requires a proactive and multisensory approach. Remember, the goal is to create memories for the jurors to return the damages that your clients need. By following these steps, you will present your case efficiently and powerfully, you will avoid defense objections and roadblocks, and you will better serve your clients when they most depend on your courage and persuasive power.

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Robert F. DiCello is a partner at DiCello Levitt in Cleveland, Ohio. He can be reached at rfdicello@dicellolevitt.com.

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Notes

1. The Cambridge Handbook of Multimedia Learning 4–6 (Robert Mayer ed., 2d ed. 2014).
2. John J. Medina, Brain Rules: 12 Principles for Surviving and Thriving at Work, Home, and School 170, 175 (2014).
3. Id. at 171–172. 
4. Id.
5. Id.
6. A2L Consulting, Attorney Communication Style Study 10 (July 21, 2011) (citing Harold Weiss & James B. McGrath, Jr., Technically Speaking: Oral Communications for Engineers, Scientists, and Technical Personnel (1963)).
7. State v. Miller, 79 N.E.3d 1, 20 (Ohio Ct. App. 2016) (contrasting demonstrative evidence from “substantive evidence,” defined as “something (as testimony, writings, or objects) presented at a judicial or administrative proceeding for the purpose of establishing the truth or falsity of an alleged matter of fact”). 
8. See United States v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998) (citing United States v. Citron, 783 F.2d 307, 317 n.10 (2d Cir. 1986)).
9. Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 8 (1st Cir. 1996) (the party offering the exhibit must identify it as a summary exhibit, provide a list or description of documents supporting the exhibit, and state when and where it may be reviewed).  
10. Gomez v. Great Lakes Steel Div. Nat’l Steel Corp., 803 F.2d 250, 257 (6th Cir. 1986) (“Contents of charts or summaries admitted as evidence under Rule 1006 must fairly represent and be taken from underlying documentary proof which is too voluminous for convenient in-court examination, and they must be accurate and nonprejudicial”) (citing United States v. Scales, 594 F.2d 558, 561–63 (6th Cir. 1979); and 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence para. 1006[1]–[07] (1986)).
11. See Fed. R. Evid. 703; see also Ill. R. Evid. 703; Salgado ex rel. Salgado v. Gen. Motors Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1998). 
12. Est. of Thompson v. Kawasaki Heavy Indus., Ltd., 291 F.R.D. 297, 314 (N.D. Iowa 2013) (citing Lekkas v. Mitsubishi Motors Corp., 2005 WL 2989899, at *1 (N.D. Ill. Nov. 3, 2005) (“Rule 26(a)’s disclosure requirements contain no exception for demonstrative evidence which summarizes or supports an expert’s opinion.”)).
13. United States v. White, 737 F.3d 1121, 1135 (7th Cir. 2013).
14. See Fed. R. Evid. 1006 and 611.  
15. See Gomez, 803 F.2d at 257 (noting that pedagogical summaries “are more akin to argument than evidence”).
16. See, e.g., Ohio R. Evid. 611 and 1006; see also N.Y. C.P.L.R. 4532-a.  
17. See, e.g., Rojem v. Royal, 673 Fed. App’x 797, 802 (10th Cir. 2016) (the trial judge excluded a PowerPoint presentation prepared by the plaintiff’s primary expert witness because it referred to a study conducted by the Department of Justice).
18. See, e.g., In re Prempro Prods. Liab. Litig., 2007 WL 4688417, at *1 (E.D. Ark. Jan. 10, 2007) (ordering the parties to exchange PowerPoint presentations and demonstrative exhibits to be used in opening statements prior to trial and promptly submit objections to the court); see also Guthrie v. Ball, 2014 WL 11585620, at *1 (E.D. Tenn. Oct. 14, 2014); Alexander v. Wal-Mart Stores, Inc., 2013 WL 427132, at *2 (D. Nev. Feb. 1, 2013); Datascape, Inc. v. Fleetboston Fin. Corp., 2003 WL 25819142, at *8 (N.D. Ga. July 24, 2003) (ordering that PowerPoint or similar electronic or video presentations that have not been included as brief appendices or exchanged pursuant to the foregoing schedule shall not be introduced in a hearing). 
19. See, e.g., United States v. Adams, 2017 WL 758400, at *2 (D. Kan. Feb. 27, 2017) (“inflammatory information” in a PowerPoint about adverse health outcomes will not be admitted to the jury).
20. See, e.g., In re Air Crash at Lexington, Ky., 2010 WL 1416748, at *6 (E.D. Ky. Apr. 2, 2010) (affirming the use of PowerPoint visuals featuring pictures of sad children when the defendant “waited until the demonstrative exhibit was about to be viewed to complain about the pictures,” and the court “brought to the jury’s attention the fact that the photographs were not of [the plaintiffs], but were actresses for illustrative purposes”). 
21. See, e.g., Bair v. Callahan, 2010 WL 3463423, at *4 (D.S.D. Aug. 30, 2010) (denying defendant’s motion to exclude a PowerPoint presentation by the plaintiff’s expert as the exhibit’s accuracy could be addressed on cross-examination). 
22. See, e.g., People v. Anderson, 74 N.E.3d 639 (N.Y. 2017).
23. See, e.g., State v. Walker, 341 P.3d 976 (Wash. 2015) (en banc).
24. See, e.g., State v. Burton, 1994 WL 171225, at *4 (Ohio Ct. App. May 6, 1994).
25. See State v. Holmes, 521 N.E.2d 479, 485–86 (Ohio Ct. App. 1987) (finding no error when the written transcripts were used only as listening aids and only the tapes, not the transcript, were sent to the jury room); see also State v. Rogan, 640 N.E.2d 535, 548 (Ohio Ct. App. 1994). 
26. The use of typed transcripts as visual aids to the jury in listening to the playback of the recorded communications is a matter within the sound discretion of the trial judge. United States v. John, 508 F.2d 1134, 1141 (8th Cir. 1975) (citing United States v. Carson, 464 F.2d 424, 437 (2d Cir.), cert. denied, 409 U.S. 949 (1972); Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967), cert. denied, Marshall v. United States, 390 U.S. 1005 (1968); United States v. Hall, 342 F.2d 849, 853 (4th Cir.), cert. denied, 382 U.S. 812 (1965).
27. Nancy Duarte, Resonate: Present Visual Stories That Transform Audiences 20 (2010).
28. Id. at 52.
29. Robert McKee, Story: Substance, Structure, Style, and The Principles of Screenwriting 21 (1997).
30. Duarte, supra note 27, at 101
31. Id. at 128. 
32. Carmen Simon, Impossible to Ignore: Creating Memorable Content to Influence Decisions 54 (2016).
33. David Dabner et al., Graphic Design School: The Principles and Practice of Graphic Design 92 (6th ed. 2017). “Good color legibility is achieved when ground and color have contrast.” Id.
34. Marvin M. Chun & Marcia K. Johnson, Memory: Enduring Traces of Perceptual and Reflective Attention, 72 Neuron 520, 523 (2011).
35. Simon, supra note 32, at 68.
36. Id. 
37. Id. at 87.