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.

The 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.

Timelines: Admissible Demonstrative Evidence

"Demonstrative evidence is admissible material used to illustrate a witness’s testimony or make other evidence more comprehensible…" (G. Christopher Ritter. Creating Winning Trial Strategies and Graphics, ABA, 2004.) It must meet the requirements of all illustrative material used in court:

► not violating any substantive rule of evidence,
► relevancy, and
► fairness and accuracy.

In addition, in order to be admissible, demonstrative evidence is based on underlying data that is:

► too voluminous to be conveniently examined in court,
► independently admissible, and
► made available to opposing counsel prior to the use of the exhibit.

Timelines are good examples of admissible demonstrative evidence because they graphically summarize a large number of significant events. The following timeline was created to show the proactive role of a defendant in protecting its employees against harassment. It was presented in two formats: 1) a static display on exhibit board that was in view throughout the proceedings; and 2) an interactive AV presentation that included supporting exhibits and videotaped testimony.

The timeline was prepared using data taken from exhibits that were jointly introduced by the parties. Opposing counsel received a printed copy of the timeline well before the proceedings started. At the conclusion of several days of testimony, the timeline was admitted as an exhibit (over the objections of opposing counsel).

Demonstrative Evidence Overcomes Juror Boredom

Novice jurors have high expectations of their role in the legal process. Regrettably, they may discover that they are bored by their courtroom experience.

• Bored with courtroom proceedings. Jurors may feel that "the necessary tedium of building a case [is] boring and irrelevant." (Tsongas and Monson)
• Bored with attorneys. Ronald Arden, a lawyers’ coach says, "Jurors come into the courtroom expecting Perry Mason." Unfortunately, some feel like “they're getting Mickey Mouse." (Reed)
• Bored with evidence. "An expert whose testimony at trial consists of… complex, technical jargon and analysis more than likely will confuse, bore, and eventually alienate the jury…" (Groth)

Demonstrative evidence overcomes juror boredom by engaging the juror’s interest through effective and efficient learning.

The role of the juror as strictly a passive listener is uncomfortable, boring, and frustrating for some individuals…. The ideal solution to relieving juror stress during these cases is to make the trials more interesting…. Using demonstrative evidence such as charts, graphs, and video technology also can communicate a great deal of information in an effective and efficient manner… (National Center for State Courts)

The use of interesting visual aids during every portion of their experience will keep jurors engaged in the process. The courts could begin by show­ing videos about the legal system while jurors are waiting to be called into a court. Visual aids could be used to explain complex definitions during jury selection. Attorneys could use demonstrative evidence during their opening in order to orient the jurors to the nature of the trial and then continue to use the visual aids to summarize and explain the facts. Expert wit­nesses could use demonstrative evidence to illustrate, de­monstrate, or elaborate their testimony.

The intensive use of visual aids will focus jurors’ attention and prevent them from becoming bored.

Demonstrative Evidence Bridges Communication Styles

Attorneys and juries have different communication styles. A study comparing the learning and communication styles of practicing attorneys and of the general public indicates that attorneys prefer to talk about the evidence, while jurors prefer to see the evidence. (Kenneth J. Lopez, “The Animators at Law Attorney Communication Style Study,” 2007.)

The study compares visual, auditory, and kinesthetic learning styles, which have been popular among educators for three decades.

Visual learners remember information more accurately when they see it.

Auditory learners remember information more accurately when they hear it.

Kinesthetic learners remember information more accurately when they touch it.

In practical terms, seven out of twelve jurors (61%) will prefer visual learning, three will prefer kinesthetic learning (20.5%), and two will prefer auditory learning (18.5%), Attorneys who rely on auditory communication alone will be under-communicating with ten of the twelve members of the jury (81.5%). Id.

Some behaviors may give the attorney clues about the learning styles of individual jurors. Visual people generally have an upright posture and sit forward in their chair. Auditory people move their eyes from side to side as they listen. Kinesthetic people often move extremely slowly and their stomach moves in and out when they breathe. (“Neurolinguistic Programming: Verbal Communication,” Student BMJ, 2006)

The gap between the communication styles of attorneys and jury members can be filled by demonstrative evidence. Visual formats such as photos, charts, diagrams, videos, and animations, will appeal to the majority of jurors. Kinesthetic tools such as visits to locations, role playing, handling product samples, and examining scale models could be included. (Opportunities for kinesthetic learning will likely be limited for jurors because the courts have traditionally valued auditory communication and have only recently encouraged visual communication by updating audio visual equipment in the courtroom. There are few opportunities for kinesthetic jurors to write notes, recite testimony, or handle exhibits.)

Audio communication can also help bridge the gap with phrases such as, “Imagine the surprise of…”, “We can see the consequences of…”, “The key points that I want us to touch upon are…”

Fortunately, most people possess a combination of learning styles and are able to shift toward the audio, if necessary. However, in a world filled with competing messages, it is always an advantage for the attorney who is able to shift toward the learning style of the jury member.

The Invisible Culture Of The Jury

Jurors seek to find meaning in the facts. They accomplish this by sifting the facts through their invisible cultural grid.* Understanding the range of cultures assists in developing and presenting demonstrative evidence that relates to every member of the panel.

• Tribal Jurors are traditionalists. They value the honor of being selected and will not act in any way that disgraces the jury. They are embarrassed when others are disrespectful or blasphemous.
• Warrior Jurors prefer action to words. They see deliberations as a battle to be won or lost. They despise weakness and will follow only those perceived as stronger. They draw a “line in the sand” and will not compromise.
• Dutiful Jurors are the ideal panel members. They seek to do what is right, they respect authority, they are willing to fulfill duty and responsibility, they will sacrifice for the good of others, they put principle before personal preference, and they are governed by clear thinking rather than emotion or impulse.
• Maverick Jurors are not team players. They are more concerned about personal time and resources than about the legal process. They do not tolerate ineffectiveness or inefficiency (which is by nature part of the jury process) and feel suffocated when they believe there are too many rules and regulations.
• Empathetic Jurors are a plaintiff’s dream team. They form an immediate resonance with anyone who has been victimized, and want to help the injured recover. They refuse to be a party to exploitive, uncaring, or insensitive behavior.

It is unlikely that a legal team will be able to predict the culture of individual jurors. Therefore, it is better to assume that the panel is composed of every type of juror. In preparing demonstrative evidence:

1. Communicate the argument and the facts in ways that each culture appreciates.
   
   
2. Affirm the values held by jurors—incorporating them into the demonstrative evidence.
   
   
3. Eliminate all offensive vocabulary and images that would cause a juror to reject the argument by rejecting the presentation.

Most people are unaware of their personal culture and the role it plays in sorting information. Good communication seeks to convey meaning by the use of symbols which each viewer can appreciate.

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*Distinct packets of culture are called memes. The concept was developed by Clare Graves to describe how cultural values reinforce one another.

Standards for Demonstrative Evidence

The Demonstrative Evidence Specialists Association (DESA) is a group of professionals that seek to hold one another to high standards of performance. The purposes of DESA include:

• Promoting excellence in the preparation and presentation of demonstrative evidence.



• Sharing ideals and raising industry standards.

At the annual meeting, members and guests examine current issues in demonstrative evidence and feature the work of talented specialists. More information about DESA can be found online at desa.org.

Origins of Demonstrative Evidence: Earl Rogers

Earl Rogers (1869–1922) “was the first trial lawyer to make extensive use of props.” (Time Magazine) It is reported that he used any other device that would communicate his goal.

In 1899, Rogers defended William Alford, who shot Jay E. Hunter, a prominent attorney. Alford testified that he shot upward at Hunter in self defense, when Hunter beat him to the ground with a cane; however, the coroner testified that the bullet passed downward through the body. Rogers had the deceased’s intestines brought into the court as an exhibit and an expert witness testified that the bullet had traveled upward through the body, just as Alford testified. (Snow)

In another case, witnesses claimed they had seen a crime through holes in a door. Rogers had the door brought into court and invited the judge and jury to try to see the defendant through the door. When they could not, the defendant was acquitted. (Time)

W.W. Robinson (Lawyers of Los Angeles) wrote that Rogers brought a gun into the court to challenge the credibility of a witness (Harry Johnson) who repeatedly testified that he was not afraid when a gun was pointed at him. During closing argument, Rogers pulled out a Colt .45 and aimed it at opposing counsel, causing them to take cover. “When the uproar was over, Rogers told the jury that what they had seen was the normal reaction of any person to a threat of death—thus completely discrediting Harry Johnson and winning the case.” (Grace)

Earl Rogers’ life was retold in the movie Final Verdict (1991)—based on a book with the same name that was written by his daughter, Adela Rogers St. John. Rogers was also personified as Perry Mason in the works of Erle Stanley Gardner. (The Perry Mason character was featured in more that 80 novels, movies, radio shows, and a popular television series.)

While many of Rogers’ “antics” would not be tolerated by today’s courts, it is clear that he helped to pave the way for the use of demonstrative evidence as a valid means of communicating to the court.

For more information:

Alfred Abraham Cohn and Joe Chisholm, Take the witness! New York, Frederick A. Stokes Co., 1934.

Roger M. Grace, “1902: Republican DA Rives Defies Wishes of GOP Governor,” Metropolitan News-Enterprise. January 9, 2007, Page 7.

Richard F. Snow, “Counsel for the Indefensible,” American Heritage Magazine. February/March 1987; Vol. 38, Issue 2.

Adela Rogers St. Johns, Final Verdict. DoubleDay, 1962.

“A Criminal's Best Friend,” Time Magazine. Nov. 2, 1962. A review of Adela Rogers St. Johns’ Final Verdict.

Mike Trope, Once Upon a Time in Los Angeles: The Trials of Earl Rogers. Spokane, WA : Arthur H. Clark, 2001.