Demonstrative Exhibits – High Tech vs. High Touch

With the introduction of PowerPoint, computer animations and electronic display systems, I have seen evidence that, as with trial issues outpacing the ability of jurors to comprehend the material, courtroom technology has also outpaced the ability of some attorneys to use it wisely.  I therefore offer this simple guideline; use high-tech when only high-tech will do, otherwise use “high touch.”  Otherwise stated, don’t fall in love with technology.

High touch starts with the witness verbal and non-verbal communications skills.  The best visual aid in the courtroom should be the witness.  With respect to demonstrative exhibits, an example of high touch would be a drawing the witness makes on a flip chart.  This action gets the witness off the stand and in front of the jury (with the Court’s permission).  The attorney can take up position near the graphic opposite the witness and ask the questions he or she should know the jurors would ask, if only they could.  The picture you should take from this is one of an interactive exchange between the attorney and witness where the witness is proximate to the jury, looking them in the eye, and acting like a teacher.

A further benefit of a free-hand drawing (which should be practiced before trial) is that it isn’t shared with opposing counsel in advance, as are conventional demonstrative exhibits.  The opposition doesn’t have the advantage of preparing for it.  It can also be an exhibit that one or more witnesses create during the course of the trial.

A higher tech version of high touch, if you will, would be a graphic board or model with moveable/changeable parts that the witness, again, in the well in front of the jury, must manipulate in order to teach a concept.  Below is such an example from a heart pacemaker case in my case files.

The above graphic was produced as a large board.  The needles on the clock face and gauge were moveable.  The “no” text placards were magnetic and replaceable with “yes” placards.  The “switch” above the heart graphic was moveable to indicate “open” and “closed.”  A dry erase felt pen could be used to indicate the level of battery and capacitor charging.  With this tool, the expert could explain the workings of the patent at issue and how the built-in intelligence would not allow the pacemaker to “shock” the heart and make it beat unless there was enough charge in the capacitor to do so (an “and gate” for you EE majors).  Thus, if the battery was dangerously low, the pacemaker would still work, but at a slower pace.

An exact duplicate of this graphic, with all of its actions, was also produced as a computer animation, but the witness first taught the technology using the graphic board.  Standing in the well with the attorney, who “played dumb” where necessary, the witness was able to connect with the jury, and both witness and attorney were able to read the body language of the jurors to ascertain whether they appeared to understand the testimony.  Once that point was reached, the jury could see the concept at work in real time via the animation.  It was also easier and faster for the attorney and witness to return to a particular point using the graphic board than the video animation.  This was an example of combining high touch and high tech to teach a point.

It should be understood that no graphic, or animation for that matter, “stands alone” so to speak, without the need of an explanation, nor would you want to produce one.  It would not engage the jury, a test for any witness examination.  Jurors, since they cannot stop the process to ask questions, are necessarily a passive party to it.  That said, there are visual aids that are more and less “engaging.”  Watching a movie on TV is a mostly passive activity, but watching a quiz show on TV is much more active, more engaging, even though the viewer isn’t a contestant, and being in the audience of that quiz show would be even more engaging for the viewer, leading to this final point on the topic:  your strategy for demonstrative exhibits should be driven by what is the best way to teach a point, not show a point.

Please check out these books by David Tunno:

Taking the Stand:  Tips for the Expert Witness, on this side of the website in the “Publications” tab, as well as Fixing the Engine of Justice:  Diagnosis and Repair of Our Jury System.  Select the “Jury Book” tab at the top.