EFFECTIVE USE OF DEMOSTRATIVE EVIDENCE

AT TRIAL

Robert W. Kerpsack, Esq.ROBERT W. KERPSACK CO., L.P.A.

21 East State Street, Suite 300Columbus, OH 43215

Telephone: (614) 242-1000Facsimile: (614) 242-3948

PRE-TRIAL PREPARATION

DEVELOP THEMES

EXAMPLES:

a. AGGRAVATION OF PRE-EXISTING INJURIESb.  DEFENDANT TAKES PLAINTIFF AS FINDS

HERc.  FULL, FAIR AND JUST COMPENSATIONd.  CLAIM IS LIKE A BUSINESS DEBTe.  DAVID V. GOLIATH

THEMES MUST BE SIMPLE “SOUND BITES”

ILLUSTRATE/REINFORCE THEMES WITH

DEMONSTRATIVE EVIDENCE

DEMOSTRATIVE EVIDENCE ORGANIZES/SIMPLIFIES

YOUR CASE

VOIR DIRE

MINIMAL USE OF DEMONSTRATIVE EVIDENCE

APPEAR SPONTANEOUS: USE FLIP CHART, INSTEAD OF TRIAL BOARDS

VOIR DIRE MODERATE DISCUSSION AMOUNG JURORS BY

ASKING OPEN-ENDED QUESTIONS:

1. HOW DO YOU “FEEL” ABOUT . . .?     2. WHO FEELS THE SAME/DIFFERENT AS JUROR

NO. 1? . . . WHY?a. DON’T ASK “WHO AGREES/DISAGREES?”

RECORD “SOUND-BITES” OF DEVELOPING THEMES

ON FLIP CHART

OPENING STATEMENT

USE SERIES OF TRIAL BOARDS INSTEAD OF WRITTEN NOTES

YOUR OPENING STATEMENT IS PRESENTED BY REVIEWING (NOT READING) YOUR TRIAL BOARDS WITH THE JURY

TRIAL BOARDS SHOULD ANSWER THE FOLLOWING QUESTIONS:

1.THE PLAINTIFF WILL PROVE . . . 2. THE EVIDENCE WILL SHOW . . . 3. WHAT WILL HAPPEN (DURING TRIAL)?

TRIAL BOARD SUMMARIZING INJURIES (USE MEDICAL TERMS)

1.“ACUTE” INJURIES2.AGGRAVATION OF PRE-EXISTING

INJURIES

TRIAL BOARD(S) SUMMARING MEDICAL

EXPENSES/LOST EARNINGS

TRIAL BOARD SUMMARIZING COMPENSATORY DAMAGES

TRIAL BOARD(S) WITH PHOTOGRAPHS, RECORDS,

X-RAY’S, ETC.

ANATOMICAL MODELS:

INJURIES CAN BE “TOUCHED”

MEDICAL ILLUSTRATIONS

1. USE WHEN PHOTOGRAPHS OF INJURIES ARE TOO GRAPHIC

2. USE TO SIMPLIFY “COMPLEX” INJURIES

VISUAL PRESENTER/POWERPOINT

RESENTATION 1. EVIDENCE ON SCREEN APPEARS

“LARGER THAN LIFE”

2. BE CAREFUL NOT TO LOOK TOO “SLICK”

PRESENTATION OF EVIDENCE

LAY WITNESSES:

RECORD “SOUND-BITES” OF TESTIMONY ON FLIP CHART

EXPERT WITNESSES

HAVE THEM “TEACH” THE JURY

DEMONSTRATIVE EVIDENCE IMPROVES COMMUNICATION

HAVE EXPERT USE A LASER POINTER IF TRIAL JUDGE DOES NOT PERMIT EXPERT TO LEAVE WITNESS STAND

HAVE EXPERT “AUTHENTICATE”

DEMONSTRATIVE EVIDENCE: a. ARE YOU FAMILIAR WITH . . .? b. IS (DEMONSTRATIVE EVIDENCE) FAIR

AND ACCURATE REPRESENTATION OF . . .? c. WILL (DEMONSTRATIVE EVIDENCE)

ASSIST YOU IN EXPLAINING YOUR OPINIONS TO THE JURY?

OBJECTION: NOT THE “BEST

EVIDENCE” RESPONSE: NOT BEING OFFERED AS

AN ACTUAL DEPICTION OF THE CONDITION BEING ILLUSTRATED

PREPARE SUMMARY OF EXPERT OPINIONS

HAVE EXPERT “AUTHENTICATE” AS FAIR AND ACCURATE SUMMARY OF HIS/HER OPINIONS

MOVE TO HAVE SUMMARIES ADMITTED

INTO EVIDENCE SEE EVID. R. 1006

DO THE JURORS’ WORK FOR THEM

CLOSING ARGUMENT

BE ENTERTAINING AND DRAMATIC USING DEMONSTRATIVE EVIDENCE

TRIAL BOARD(S) WITH TRANSCRIPTS

OF IMPORTANT TESTIMONY

TRIAL BOARD(S) SUMMARIZING EVIDENCE DURING TRIAL

CLOSING ARGUMENT

TRIAL BOARD OF SPECIAL JURY INSTRUCTIONS:

EXAMPLE:(“DEFENDANT TAKES PLAINTIFF AS HE/SHE FINDS HIM/HER”)

CLOSING ARGUMENT

TRIAL BOARD OF SPECIAL JURY INTERROGATORIES:

TAKE THE JURORS THROUGH DELIBERATIONS STEP BY STEP

FILL IN THE BLANKS OF THE JURYINTERROGATORIES

CLOSING ARGUMENT

USE PER DIEM ARGUMENTS FOR FUTURE DAMAGES

SUGGEST REASONABLE “FORMULA” FOR NON-ECONOMIC DAMAGES