Visual Insights: Expert Witness Demonstrative Evidence
By Noah Bolmer
When words aren’t enough, expert witnesses may use demonstratives to more clearly explain a complex situation, illustrate a technical detail, or to summarize a lot of information. From PowerPoint to scale model, these exhibits run the gamut in form, but are all designed to quickly communicate using a visual language.
An Effective Strategy
The difference between winning and losing might come down to the judicious use of visual exhibits, according to real estate expert Michael Maxwell, recalling:
[I worked on a case regarding] signage and land use regulation, and about half of it was graphical to show the court what the standards really were, because [. . .] these zoning codes weren’t graphical; they just listed things. And so I did a whole set of graphics (and got some graphic people to work with me) and the judge [stated], “Hey, I understand what it is that you were doing—by the way, your client wins.”
Getting the jury on the same page is important, he explains:
I want to try to show everybody the same thing. So, if I’m going to show them a picture, [for example, a building], I’ve got a picture of it. I don’t want them to just imagine it because some of them may make it Cinderella’s Castle and other people may make Uncle Tom’s cabin—so I want to make sure that there’s not differing things in people’s minds; I want to make sure that they see the same thing that we’re all about to talk about.
Getting Perspective
Process and facilities engineering expert Mark Landrum uses software to take judges and jurors on virtual tours of complex equipment:
[Y]ou can navigate like you’re flying above or walking through a three-dimensional model of all the piping, equipment, and pipe racks. [. . .] That’s a very effective demonstrative in many cases to show, and it’s something that I can do with a copy of the Navisworks model. If we’re trying to animate a process system or piping system and show the flows, or if it’s a batch process and you have different steps in operation, then either I would go, or the trial team would typically go, to an outside contractor that has highly skilled graphics expertise to prepare those animations.
Mechanical engineering expert David Smith uses demonstratives to give the jury a victim’s perspective:
Visual aids, demonstratives, models—anything to grab their attention and help them understand what happened. That’s the question I’m usually addressing. Sometimes, there are safety issues in technical arguments, but usually what the jury wants to know from the engineering expert is what happened. How did they get hurt? What went so wrong that this person lost their arm or got crushed or whatever happened? Being able to explain that or show that with a video or in-person test l have found to be very effective ways of doing that.
He continues with an example:
We got a container and built a test fixture the same size and shape as the back of a truck. Then, we used some long hydraulic hoses to move the controls to a safe location. We went through the same process, pushed the container out like they said it happened, and saw it drop down, pivot, swing around, and slam into the side of the container. You had a metal container slamming into a big metal test fixture; it was loud, and it was scary. I’m sitting on the other side of the parking lot, 30 to 40 yards away, and my hands are shaking. When you show that to someone in a deposition or at trial, they get it. It’s like all of a sudden, ‘Okay, we know what happened and we know that this guy didn’t do anything wrong. He was standing at the controls and something happened with the way the equipment was functioning.’
The Psychology of Visual Aids
We’re hard-wired to incorporate visuals into our thought process, according to psychology expert Dr. Ellen Leggett:
I’m a big believer in visual communication in the courtroom because a picture is worth 1,000 words. It truly is, and it also has a longer memory than words. I’m valuable as a member of the trial team working with the witnesses and experts, [and I’m] usually asked to read their expert report. I’ve looked at what kind of charts they put into the report, and I inquire whether they have any graphics firm working on the case that can assist in making the charts and graphs even better. My assessment is that they need a lot of charts, graphs, and visual demonstrations in any way possible, in any media possible. I have worked with experts, and we’ve made complete videos for them.
Juries are more engaged with visual aids, she explains, giving an example:
One expert witness was an economist testifying about the worldwide salmon market and the supply and demand of salmon. We sent this expert with a crew of videographers to Japan to film the Japanese fish markets to show what consumers are seeing. This was my idea, because you talk about supply and demand and eyes glaze over—but given that we were talking about Japan as the largest importer of salmon in the world [. . .] it was pivotal. Whereas before the expert just talked about supply and demand, we were not getting the jury traction that we needed on a big antitrust case where market changes were very important.
Production
Demonstratives can be produced by the expert, in-house at the law firm, or through specialized third parties. Finance expert Michael LeRoy recommends getting help when production is beyond your ability:
[It depends] on the size of the case—if it’s a small case, I can do it myself. I’m good at PowerPoint. […] If it’s a large case and you’re going to have a lot of slides and you want it to look professional there are plenty of people out there who do that for a living. You’ll have to take the time to make sure they understand the visual you want. You need to have an idea in the back of your mind of the slides you want and the information you want to show. Sometimes, they’ll come up with great ideas that you haven’t thought of to present it.
Mr. Smith prefers in-house production, which is part of the accident reconstruction process:
We produce those. Much of it comes from the testing we do when we generate our reports and opinions. For example, we did a case ages ago where a refuse worker was emptying a container in a rear-loading truck. He was standing on the side of the truck, and the container somehow swung around and pinned him, crushing him against the side of the truck. [. . .] We got a container and built a test fixture the same size and shape as the back of a truck. Then, we used some long hydraulic hoses to move the controls to a safe location. We went through the same process, pushed the container out like they said it happened, and saw it drop down, pivot, swing around, and slam into the side of the container.
Keeping Trim
While visual aids are effective, there can be “too much of a good thing” according to forensic accounting expert J.W. Verret:
Most of the prep time with the lawyers was ‘Let’s see how much we can cut.’ I started with the fat PowerPoints, and the lawyers were like, ‘Oh my God.’ and I was like, ‘I just want to make sure I didn’t lose anything important.’ They say, ‘Fine.’ They took a slice—slice, slice, slice—cut out everything you can from that thing. There were ten words on each PowerPoint, and we had maybe fifteen PowerPoints at most. That’s it. That’s all you get. A couple of graphs or charts. They’re self-explanatory and punchy. Keep it simple and lean. If you want to talk, you can talk, but you don’t want them to spend a lot of time looking at it while you’re talking.
Visuals in Expert Witness Reports
Beyond the exhibits in the back of many reports, expert witnesses can include demonstratives within the report itself. Mr. LeRoy makes frequent use of visuals in his expert witness reports:
I’m different from a lot of people. I’ve seen a few other expert reports where they use graphs and charts. But I’m a very graph-and-charts person. Here again, I think the visual tells the story. I’ll put it in writing, but underneath the writing I’ll have a bar chart, line graph, or a simple table. Not too complicated—the complicated tables and the big data stuff goes in the back with exhibits—but even with judges and lawyers on the other side of the fence, a lot of times they won’t really get through it all. [They] won’t focus on it and understand it. You need to have a couple of pages that say it in simple terms with a couple of simple graphs. Then you can go into more detail in the body of your report.
Mr. Landrum agrees, noting, “We do. It always helps to have charts and screenshots from those 3D models or photos that show a stage of construction or the inspection of a piece of equipment in the shop prior to delivery to the site. We try to include those types of figures in the reports, and that’s proven to be highly effective too.”
Financial services expert Glenn Bierman recalls a time where a signature exhibit won the case:
A report is dry, as you know. I’ve always found that visuals are great aids; they don’t have to read the words. They could look at the picture. In one case, I was involved with an individual investor who lost a bunch of money from a broker [. . .] I said to my client, ‘It looks like the signature on your original application when you opened your account is different than the signature on the option agreement.’ It turned out that the broker had forged his signature.
The Future
In 1993, the first computer animation was successfully admitted as a demonstrative. It was allowed under the theory that it was used “merely to illustrate an expert’s opinion”. About 30 years later, the same attorney, Kenneth Padowitz, successfully admitted the first virtual reality (VR) demonstrative into an American courtroom for the same purpose. While ethicists are split on the impact of VR demonstratives, the door is now open to translating expert opinions into fully realized, and even interactive displays.
Utilizing visual aids to enhance your testimony and reports is an effective way to communicate complex facts and areas of expertise. Get help when needed for a professional demonstrative, and trim presentations to the necessary components.
For over 30 years, Round Table Group has been connecting litigators with skilled and qualified expert witnesses. If you are interested in being considered for expert witness opportunities, contact us at 202-908-4500 for more information or sign up now!