Tuesday, June 12, 2007

Demonstrative Evidence in Construction Disputes

Construction disputes are resolved more easily by using visual aids because demonstrative evidence helps everyone see the issues. For example, the dates of events are often critical, so one of the most effective tools an attorney can use is a timeline that illustrates the important events. (Richard Flake, “Mediating Construction Disputes,” American Arbitration Association, May-Jul 2003.)

Demonstrative evidence is any display that is principally used to illustrate or explain other admissible evidence (testimony, document, or real) or judicially noticed fact. (Brain, Robert D., Broderick, Daniel J., "The Derivative Relevance of Demonstrative Evidence: Charting its Proper Evidentiary Status." UC Davis Law Review, Vol. 25, p. 957; 1992.) It could be presented in timelines, charts, graphs, photos, slide shows, animations, scale models, or any number of formats.

expert imageThe testimony of an expert witness is greatly enhanced by visual aids. A blowup of a blueprint, a callout from a document, or a cutaway of a product will help the hearer to better understand the tes­timony. Also testimony is more memor­able when it is both heard and seen—retention increases 400% when information is presented in an Audio Visual format. (National Training Laboratories, 1998, Online.) If a specialist is employed to run the AV equipment, it is important for the expert to rehearse his testimony with the specialist, so that the presentation is free of technical glitches. (Robert F. Cushman, Esq., John D. Carter, Paul J. Gorman, Douglas F. Coppi, Construction Disputes: Representing the Contractor. Aspen Publishers, 2001; p. 466.)

The careful use of demonstrative evidence enables “the trial attorney to shape the form in which the evidence is presented as well as the se­quence of the documents, which may be important to an understanding of the problem in the minds of the jury.” (Thomas J. Kelleher, Brian G. Corgan, William E. Dorris. Construction Disputes: Practice Guide with Forms. Aspen Publishers, 2002; pp. 840 – 841.)

Demonstrative evidence that is shown to be relevant, material, and competent, may be admitted into the record, at the courts discretion. This ensures that the jury will have full access to the exhibit during deliberation and that the exhibit will be considered in the event of an appeal. So, whenever applicable, provide letter-sized copies of the demonstrative evidence for the court’s convenience.

Resolving construction disputes is facilitated by demonstrative evidence because much of the information is better presented and understood in visual form.