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The art of demonstrative evidence: seeing may be believing, but how and when demonstrative evidence is presented can make the difference between persuasion and confusion.

Article Excerpt
Visual demonstrative evidence in trial can be a powerful tool, especially in medical negligence cases where lawyers can use illustrations, photos, and graphs to explain complicated concepts, confusing chains of events, and the interplay of multiple actors.

While we learn and communicate with all senses, sight is our primary sense. Humans assimilate 83 percent of data through sight; only 11 percent is gained through hearing, with the rest divided among the other senses. (1)

But to be effective, demonstrative evidence must be used with care. It can unintentionally distance the lawyer and, most important, the plaintiff and his or her story from jurors. (2)

Demonstrative evidence used in either the opening statement or summation should be focused and visceral. Medical negligence cases lend themselves to powerful visual messages. A picture of an unkempt, tired nurse, a model of a spine showing back surgery done at the wrong level, and the apparatus needed to feed a brain-damaged child all shout "medical incompetence."

In addition, jurors will recollect more testimony when a witness's words are combined with a visual summary that includes words or pictures displayed on a chart or a projection screen while the witness is testifying. (3) But lawyers must be careful not to put the cart before the horse. When demonstrative evidence is presented before the testimony it illustrates, jurors may focus on the visuals and tune out the words.

The backbone of any plaintiff's case is its theme, the picture or phrase that concisely tells what the case is about. (4) Demonstrative evidence is especially helpful in reinforcing a case's theme. For example, the theme "the defendants took the gamble, but only the patient put up the stakes" may be illustrated by a chart displaying the many choices made by the health care providers next to the few available to the patient. Cases involving nursing errors in administering medications or fluids may be best supported by a case theme of "too much too soon." Exhibits could show the differences between the correct dose and the amounts given to the patient.

Using color helps reinforce themes. To many people, green conveys an image of safety, while red suggests danger. To show that a defendant doctor "ran a medical red light," consider a graphic depiction of a stoplight, where green represents a safe condition and red the patient's clinical presentation.

Medical risk factors can be highlighted with a red flag instead of bullets or numbers. For example, to illustrate a plaintiff's risk factors for pulmonary embolism, the lawyer might put a list of the words "nausea, dyspnea, fatigue, obesity, and syncope" under the heading "Charlotte's Risk Factors for Pulmonary Embolism." But a chart titled "Ignored Red...

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