Demonstrative Evidence: Tell and Show

• Author: Jennifer L. Keller, Chase A. Scolnick
• Pages: 43-48

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Demonstrative Evidence

Tell and Show

JENNIFER L. KELLER AND CHASE A. SCOLNICK

The authors are with Keller Anderle LLP, Irvine, California.

In jury trials, talk is cheap. Eloquence may be enough to persuade

TV audiences, but words alone rarely win verdicts. Jurors expect

to be told and shown.

Well-crafted visual aids quench our thirst for visual infor-

mation and allow counsel to persuade through demonstration.

They also bring abstract evidence to life, inspire the jury’s trust,

and frequently motivate their verdict. Yet, these critical tools of

persuasion are not used often enough. To be effective, we need

to adopt a broader and more creative use of visual aids. After all,

without demonstrative exhibits, it’s all just talk.

In the age of instant messaging, smart TVs, and never-ending

social media bombardment, most of us cannot endure the hard-

ship of a five-minute wait in a grocery checkout line without

clawing for our smartphones to provide visual stimulation. The

digital age has conditioned all of us to assimilate more informa-

tion simultaneously through visual and auditory cues.

The same is true for jurors. Their attention spans have become

shorter, and they need and desire to be constantly educated and

entertained by multimedia presentations.

Trial lawyers who accept this reality and engage jurors

through demonstrative evidence will better connect with their

audience. They will also be rewarded. In post-trial interviews,

jurors frequently report that the most memorable or significant

evidence was a demonstrative aid. Many jurors base their verdict

largely on the visual exhibits presented.

Studies show why demonstrative exhibits are so effective.

People who receive information in multiple formats will remem-

ber more information than those who learned by only auditory

or visual cues. One study found that people who were both told

and shown retained six times more information than those who

were only told it. Those who learned the information both orally

and visually retained it far longer.

Moreover, visual aids also instantly corroborate counsel’s

statements, enhancing their credibility. Trials are credibility

contests. Jurors must determine which attorney is telling the

more accurate story. As jurors listen to counsel, they are simul

-

taneously attempting to determine whether the lawyers can be

trusted. A visual depiction instantly corroborating counsel’s mes-

sage conditions the jury to trust counsel’s statements and accept

counsel’s version of the factual dispute.

Visual aids also ensure your message is not lost in translation.

Through descriptive language, attorneys try to convey a compel-

ling narrative in the light most favorable to their client. But no

two jurors ever hear the same closing argument. Even the best-

told story leaves room for interpretation.

As jurors’ minds race to fill in the gaps, they are left with their

own interpretation of counsel’s narrative, which necessarily dif-

fers in material respects from what counsel intended. We have all

experienced this phenomenon when a favorite book gets turned

into an awful movie.