Authentication, Exhibits, and Courtroom Presentation

In hearings, mediations, and trials, successful litigation is the result of educating and persuading the audience to understand and agree with your argument.   Most people agree that audiences believe things they see more than what they only hear, and that they tend to remember more of what they both see and hear.

Demonstrative tools for litigators have changed and evolved greatly since I first started practicing.  In my early career, if I wanted to illustrate an injury, I would have to engage the services of medical/legal illustrators–who would literally hand paint an image of my client’s injuries.  They would rely upon medical records, x-rays, and even occasional conversations with the doctors to perfect the illustrations.

Those one-off illustrations were very expensive and would be subject to strenuous objections that often had me holding my breath and my wallet until the judge would rule on their use.  Often they would be used only for “demonstrative purposes,” or even completely disallowed.  Changing the illustration would be costly and time consuming.

These days, a two-second Google search can yield almost any image of any injury as well as videos of the most graphic surgeries.  Computer illustrations can be altered on the fly, sometimes by me, using Adobe or my IPhone.  Cost is simply no longer a factor, for most images can be put together within a few hours by anyone with access to the internet.

The Demonstrative Exhibit v. the Demonstrative Aid

The first distinction a litigator should consider is what is the purpose intended with any particular piece of information.  In other words, is the exhibit a tangible document that has been discovered in the course of the litigation–such as a medical record, incident report, or photograph of the accident scene–or is the exhibit something that was created solely for the purpose of helping educate and persuade the trier of fact–such as a computer-generated reconstruction, a model, graph, or other illustration.

Documents actually discovered are referred to as demonstrative exhibits, and they are intended to be submitted to the jury to utilize in their deliberation on the case and are considered to be evidence.  Demonstrative aids, on the other hand, are used simply to assist in conducting voir dire, opening, or closing, but they are not going to be submitted to the jury to refer to during deliberation.

For Use at Trial

Both demonstrative aids and demonstrative exhibits must first be deemed to be relevant and fair.  In other words, the more relevant and accurate the exhibit is, the more likely its use will be allowed.

For any exhibit to be admitted, it must satisfy Rule 401 of the Rules of Evidence–and in Florida State Court Cases, Rule 90.401:

90.401 Definition of relevant evidence.—Relevant evidence is evidence tending to prove or disprove a material fact.

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

That means the exhibit must be relevant, probative, and authenticated. In Florida, all relevant evidence is supposed to be admissible except under certain circumstances:

90.402 (Admissibility of relevant evidence.—All relevant evidence is admissible, except as provided by law.)

90.403 Exclusion on grounds of prejudice or confusion.—Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

Regardless of whether the exhibit is based on a medical record or a cell phone bill, the trial judge has tremendous discretion in deciding if the exhibit is going to be shown to the jury.  While this issue is frequently the subject of appeal, the decision as to whether or not an exhibit was properly admitted or excluded can be reversed only if the appellate court finds both an abuse of discretion and a prejudicial error.

The use of technology in the courtroom for showing juries demonstrative exhibits has changed greatly in my career.  When I first started practicing, every courtroom was equipped with an old-school blackboard, chalk, and a pointer.  Easels could be brought in with flip boards so that certain illustrations could be drawn on the spot.

Today’s modern courtrooms, especially in Federal Court, look a lot like the bridge of Star Trek’s Enterprise. Large high-definition video monitors are now commonly mounted throughout the courtroom, and individual computer screens are now provided for the judge, clerk, court reporter, each juror, and for each lawyer to view documents and other exhibits.  In addition, court reporters now provide real-time transcriptions of the proceedings to the judge and attorneys.

I have used an iPad in court to present and control certain exhibits and have found some IPad apps like TrialPad to be very helpful.

To ensure that your exhibit will likely be admissible or usable, you should make sure you closely follow the court’s pretrial order, and make sure that you entire presentation is well rehearsed.  Setup of projectors, speakers, and a screen should be choreographed well in advance of the trial.  Most judges will allow lawyers access to their courtrooms in advance of a trial to practice and confirm that the presentation technology works and can be used without disruption.

A few words of advice:

1. Always have a back-up plan.  iPad can be dropped.  Internet connections can be lost.  And sometimes, things just do not work.  It is frustrating and potentially embarrassing to have your laptop simply not respond in the middle of an important part of a trial.  I have been there.  Always have multiple back-ups and even have the exhibits printed in hard copy just in case.
2. Know where the outlets are and bring extension cords.  Nothing is worse than having your projector so far from the screen that it’s out of focus and no one can see what you have worked so hard to prepare.
3. Old-school still works sometimes.  I love hearing stories of big verdicts accomplished with just a board and chalk.  It rarely happens anymore because everyone is so afraid of not using a “dog-and-pony show.”
4. Focus-Group your Exhibits:  We focus-group our cases, but we also focus-group the exhibits. Colors, fonts, and other small details can sometimes greatly affect the results.