Demonstrative Evidence: Don't Cross-examine Without It ̶ part Ii

• Citation: Vol. 38 No. 1
• Publication year: 2016
• Author: Matt Dodd and Roger Dodd
• topic: Business of Law,Family Law,Civil Procedure

Demonstrative Evidence: Don't Cross-Examine Without It - Part II

Matt Dodd and Roger Dodd

Matt Dodd comes from a family of lawyers and has been in the courtroom as long as he can remember. After moving his family to the wilds of southwest Montana, Mr. Dodd founded a small, trial-practice firm with offices in Bozeman and Big Sky, Montana.

Roger J. Dodd has active offices in Utah, Georgia, and Florida where he practices trial work of all types. He is listed in Best Lawyers for more than 20 years. He is one of a handful of lawyers nationally who are listed in Super Lawyers in more than one state simultaneously He is Board Certified by the National Board of Trial Advocacy in Civil Trial Practice for more than 25 years, and was a Board Certified in Criminal Trial Practice for more than 20 years. He is a fellow in the American Academy of Matrimonial Lawyers, the International Academy of Matrimonial Lawyers, and the American College of Family Trial Lawyers. He has lectured and taught lawyers and judges in all 50 states, and multiple foreign countries. TV and legal credits include CourtTV, TruTV, CNN, ABC, CBS, and cable TV

As we discussed in our last article, the use of demonstrative evidence in cross-examination is essential to best teach your client's story and focus the fact-finder on your client's theory of the case. In that article, we gave you real-world examples of various ways in which demonstrative evidence can be used in constructive and destructive cross-examinations.

In this article, we'll take a step back and show you how using a theory and themes can guide the use of demonstrative evidence early in the trial process to set the stage before you even begin your cross-examinations.

Finding Your Theory of the Case

Cross-examinations do not spring full grown from the minds of even the best trial lawyers. Although we argue that cross-examination is the most important part of trial, much to our dismay, cross-examination is just one part of the whole. Before you can draft your first question, before you can determine whether a constructive or destructive approach will be most effective, and before you can establish the goals for your cross-examinations, you must develop a theory of the case. Only by developing a theory of the case (early in the case) that is consistent with the facts and your client's goal(s) can you set up effective cross-examinations and the supporting demonstrative evidence.

At its most basic, a theory of the case is the one-sentence reason your client should be afforded the relief he or she is seeking. One caution, especially for less-experienced lawyers - a theory of the case should not include every fact that supports your case and every fact that hurts your opponent's case. It should not be a mouthful and it should not be a paragraph on the written page. Rather, it should be a statement as simple as, "My client deserves sole custody of the children because while s/he was at home raising the children, the opposing party spent his/her time away from the home abusing prescription medication." Although a theory does not have to be quite as...