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Add dynamics to direct examination: linking a memorable demonstrative exhibit with witness testimony will catch jurors' interest and help them understand the facts.

Article Excerpt
Demonstrative exhibits in every imaginable form--documents, photographs, slides, videos, animations, sound recordings, charts, X-rays, and medical illustrations--are the pieces of evidence that jurors can take into their deliberations. Without this tangible evidence to discuss, they would decide the case issues based only on their memories of oral testimony and their impressions of the witnesses.

"Demonstratives" sometimes cannot be admitted into evidence. For example, some courts will not admit an expert's chart with notations because it unfairly highlights the expert's testimony and is an "improper attempt to put written testimony before [the] jury ... to memorialize" the expert's opinion. (1) Trial lawyers may, however, use demonstratives not admitted into evidence as identified exhibits and refer to them in closing argument. Even though the exhibit is not allowed in the deliberation room, it provides an excellent visual anchor in summation.

Using demonstratives can give the plaintiff's case concrete form. They can also help you develop an "integrated" presentation strategy using multiple modes of communication--oral testimony, printed words, and visual exhibits--to improve the effectiveness of the examination. But demonstratives can backfire if jurors ignore, criticize, or--worse--find an adverse use for them. They can also be "turned around" and become a potent weapon in the hands of the defense.

An effective demonstrative should be objection-proof, time-saving, easy to understand, memorable, interesting and useful to the jury, and free of adverse inferences.

Avoid objections

As much as practically possible, you should "immunize" the demonstratives you will use in direct examination from a sustainable objection. That is, you should identify and show the exhibit to opposing counsel before you use it, either by disclosing it or by making it available for inspection during discovery or pretrial conferences. Another good practice is to mark up demonstratives in advance and give the defense a list of all your exhibits before trial.

If an adversary raises objections before trial, file a motion in limine to brief the judge on the issue...

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