Section 8.15 Documentary Records and Compilation of Data

• Library: Sources of Proof (2014 Ed.)

6. (§8.15) Documentary Records and Compilation of Data

Depending on the nature of the litigation, contracts, deeds, hospital charts, equipment maintenance records, industry or government standards, wills, ordinances, construction drawings, or a host of other records may be offered. For particular emphasis, photographic enlargements or other such displays of the documents might be considered.

When statistical data is involved, it can be most helpful to jury understanding and persuasion to use summaries that extract the key data and place it in an understandable form with charts or graphs prepared in advance or even written out on a flip chart in open court and offered as an exhibit. It is within the trial court’s discretion to refuse summaries placed by counsel on a marking board because they do not constitute demonstrative evidence. See State ex rel. Mo. Highway & Transp. Comm’n v. Meramec Valley Elevator, Inc., 764 S.W.2d 507, 508 (Mo. App. E.D. 1989). That problem should be avoided, however, if witnesses adopt the summaries as their own. In Elam v. Alcolac, Inc., 765 S.W.2d 42, 191 (Mo. App. W.D. 1988), the trial court admitted a statistical chart prepared by an expert. The court of appeals held that this admission was within the sound discretion of the trial court. But the court of appeals makes note that the chart had been prepared before trial and had been provided to both opposing counsel and the court so that there were no surprises that might be experienced with charting statistics in the middle of trial. Combining the lessons of Meramec and Elam, it can only be deduced that courts disfavor surprises. Use of charts created in the courtroom is likely scrutinized more critically than demonstrative aids created and relied on by a witness before the trial is commenced.

One of the more interesting and effective examples of using chart summaries as visual aids in helping jurors assimilate vast amounts of information is Elam, 765 S.W.2d at 92–93, in which 31 individual plaintiffs alleged varying degrees of injury from inhalation of chemical emissions from an industrial plant. A variety of charts were used, including:

· separate charts naming all plaintiffs and reflecting their life expectancies and which physical symptoms each demonstrated;

· a chart with a summary of symptoms of all plaintiffs; and

· a chart with a summary of abnormal laboratory tests of all plaintiffs.

These conveyed information bearing on all plaintiffs as a group, and...