Demonstrative exhibits are an integral part of any trial presentation.  They are the tools that help us educate the jury about products, teach them about complex technical issues and understand the evidence.  They can illustrate salient points that could be difficult to explain concisely and clearly, and can refute claims of our opponents.  If a picture is worth a thousand words, a video or reenactment may be worth millions of words.  The importance of the effective use of demonstrative aids cannot be overstated.

Demonstrative aids can run the gamut from simple drawings made on chalkboards by witnesses during their testimony to a high tech accident reconstruction video presentation.  They may consist of several blowups of significant photographs, or enlargement of pertinent documents.  The technology available today permits a wide range of possibilities, including highlighting text in a document and during testimony, enlarging and pulling out important language from a document and marking the document on the screen to direct the jury’s attention to a specific part of an exhibit.

It may be important to demonstrate how a machine works, or how technology is used.  It may be necessary to depict the biomechanical possibilities in a given accident.  Videos, computer simulations and other technologies can be very effective to bolster your case.  Timelines are a favorite demonstrative aid and with modern technology, the timeline can be “created” during witness testimony before the jury’s eyes. 

There are many creative and effective ways to create engaging demonstrative aids.  The Trial Techniques SLG will take up the topic at the upcoming DRI Products Liability meeting in Las Vegas (April 11-13).  If you have any particular questions about this topic that you would like to be considered for further discussion in Las Vegas, please post.  

It is not surprising that plaintiffs claiming to be injured in auto accidents are often evasive about their prior medical history and treaters. In an article published by the American Medical Association, “Examinee-Reported History Is Not a Credible Basis for Clinic,” Robert Barth, Ph.D., cites numerous studies confirming that claimants tend to misrepresent their pre-claim functioning as having been “superhuman,” and distort their reported history in a fashion that potentially inflates the financial compensation for their claims.

This forces defense attorneys to utilize alternative methods in their ongoing attempt to locate the pre-accident smoking gun:

• Jail medical records: In a recent Michigan case, a plaintiff admitted he previously suffered a closed head injury from a prior auto accident. However, he claimed that he never had seizures before a subsequent auto/pedestrian incident, and was not taking Depakote for seizures. There was a gap in his post-MVA treatment, and it was discovered he was incarcerated. Indeed, the jail medical records confirmed a year before the accident that he suffered a seizure and was taking Depakote, an anti-seizure medication, for his condition.
  
• MasterTrace: This service bears fruit, particularly when a plaintiff has no prior history of health insurance, and has lived in other states. MasterTrace performs an extensive canvass profile of hospitals and pharmacies within a certain designated radius and matches up with the plaintiff’s background information to come up with potential “hits.” However, this service can be expensive, depending on the nature of the search.
• Prescription Drug Monitoring Programs (PDMP): A PDMP is an electronic database that collects designated data on substances dispensed to a patient in the state. Thirty-seven states currently have PDMPs. On September 1, 2011, pharmacists in Florida began submitting data to the recently implemented Florida Prescription Drug Monitoring Program. Across the country, access to this information is restricted to physicians and law enforcement personnel. While defense attorneys are not able to subpoena the information, if you are lucky, the plaintiff’s treating physician may request a PDMP if he or she suspects drug abuse or doctor shopping. Generally, the physician will not supply a copy of the PDMP in a standard subpoena unless requested, or if you happen to come across it during a review of the actual file in a doctor’s deposition. If you do land such a report, it may provide an abundance of information, including prior treaters and pharmacies, and demonstrate evidence of pre-accident drug abuse.
  
• Veteran Administration Records: Do not skim over the fact that a plaintiff served in the military 40 years ago. He or she may still be treating and receiving prescriptions from your local VA hospital. Further, if a plaintiff is receiving a pension from the VA, he or she periodically has to undergo a disability determination, and fill out paperwork. It is always compelling to see what the plaintiff tells the VA, as compared to Social Security Disability, workers’ compensation, and plaintiff's own treaters during the identical time frame.
• Health Insurance Cards: Somewhere in every treater’s medical record, hospital’s intake sheet, or hidden deep within a prior auto accident claim file is a copy of plaintiff’s health insurance card (if he or she has one). If located, these health insurance records may provide a precise history of all prior hospital, doctor and pharmacy visits.

A plaintiff is not going to hand you his or her pre-accident history on a platter, so expect to do some extra digging. With enough persistence, you may ultimately discover a wealth of information that could undermine the plaintiff’s credibility and case.

Robert Abramson is an associate in the law firm of Kopka, Pinkus, Dolin & Eads in Farmington Hills, MI. He specializes in first-party, third-party and uninsured motorist claims in Michigan. Mr. Abramson is a member of DRI's Young Lawyers and Insurance Law Committees.

 If you spend some time looking at the statistics, you will see the number of jury trials is swiftly declining.  Many states and organizations have recognized the decline, voicing concerns about the resulting impact on the judicial system, the public and lawyers.  The Florida Bar created a special taskforce, the Special Committee to Study the Decline in Jury Trials (“Committee”), to research and analyze the trend, determine the root cause of the decline and recommend a course of action to the Florida Board of Governors to minimize the impact of this decline.  The Committee issued its final report in December 2011.  The full report is available at floridabar.org by clicking “About the Bar,” followed by “Committees” and then “Special.”

The Committee reviewed, among other published studies, Professor Marc Galanter’s article The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts (1 J. Empirical Legal Studies 459 (2004)).  When you view the statistics, the decline is apparent, and staggering.   For example, in 1962, 11.5% of 50,320 civil federal court dispositions were by trial.  In 2002, there were only 1.8% dispositions by trial, out of 258,876.  In Florida civil cases, 1.6% of total civil cases (155,407) were resolved by jury in 1986.  By 2009, the percentage reduced to .2%, while the number of civil cases increased to 401,463. 

According to the Committee, there are several reasons why jury trials suffered declines.  For civil cases, the rise of alternative dispute resolution mechanisms contributed markedly.  The expense of trials is always another common deterrent.  Another factor is the time it takes to bring a case to trial.  Despite the reduction in number, it was noted that jury trials have become more complex -- longer and more complicated. 

The declines have not been without negative impacts.  With fewer jury trials, fewer people participate in the judicial system as jurors.  Jury service helps educate the public about the justice system.  It is a simple way for the average citizen to play a role in governmental decision making.  If the nearly all disputes are resolved privately, via mediation or arbitration, rather than in an open courtroom, the public’s perception of the justice system will become further skewed.

The decline in jury trials also contributes to reduced funding to the court system, as the decline itself may be viewed as a reason to fund less.  This contributes to a never ending cycle of funding and less independence of the judiciary. 

One of the greatest impacts, however, is the effect on new lawyers.  A lawyer learns best by first-hand practice.  With less opportunity to conduct a trial, lawyers must look to other training which will always be less adequate than the real thing.  The new lawyer ends up feeling uncomfortable and unsure regarding his or her skills.  When the opportunity finally arises, the lawyer may shy away from the experience because he or she simply does not know how to try a case. 

The Committee recommended several measures, including full funding of the courts.  To reduce the impact, the Committee also suggested training and mentoring programs for young lawyers, such as certified legal intern programs or State Attorney/ Public Defender internships.  The Committee further recommended techniques to the bench to more efficiently administer judicial duties, with less cost to litigants, such as streamlining discovery and encouraging the use of expedited jury trials. 

DRI created the Jury Preservation Task Force to examine this federal and state vanishing jury trial phenomenon and report on its findings, which will be published in a future edition of For the Defense.    

The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

Jamie Oliver, a chef and a child advocate focused on ensuring kids receive proper nutrition through their school lunch programs as well as at home, has a television show, Jamie Oliver’s Food Revolution, showing how he changes eating habits in school districts (this season he is in Los Angeles).  In each episode, he creates a visual showing the terrible foods kids are putting in their bodies.  It’s one thing to tell kids (or their parents) that fast food and processed food is bad for them, it is quite another to create a visual showing how bad it is, and creating such a powerful visual that it convinces those kids, their parents and the audience watching the show (including myself) how bad those foods are.  In a recent episode, he filled a family’s house with all the fast food they consume in a year.  Every square inch of furniture and floor was covered.  In another episode, he filled a school bus with sugar to show how much sugar the school board permitted in the kids lunch meals over a year.  It was powerful images like those that made folks change their minds and change their behavior.

When preparing for trial, we can take a page out of Jamie’s book, and think about what visuals (whether a photograph, a diagram, an animation, or some other representation) that encapsulates our theme and does so in such a powerful manner that the image we create carries through the trial, into the deliberation room and turns the jurors’ hearts and minds toward our view-point and toward our position.  Keep a file folder in your office drawer where you include pictures, images and ideas you clip from magazines and newspapers.  These images may later serve you at trial.

Being that it is Monday, my partner Craig Salner has his weekly tip for young lawyers.  This week he discusses the importance of getting involved with social networking.  You can find his post at http://csalner.wordpress.com/.

Assume everything you write or e-mail an expert will be discoverable.  Even if you can somehow keep it from being discovered, you will probably spend your time and the client’s money to keep it confidential.  With that in mind, before you send anything to an expert ask yourself whether you would have a problem with the other side seeing it.  If so, think long and hard before sending it.  Also, folks have become too casual in what they include in e-mails, and I’ve found this true with experts, particularly their staff.  So try to avoid e-mailing experts and their offices whenever possible, sticking to phone calls and faxes when possible.  And ask them not to e-mail you.  Yes, it is less convenient, but it will help ensure that the experts don’t make errant comments that become part of their permanent file (which at some point will likely have to be produced to the other side).

In the movie, Super 8, JJ Abrams and Steven Spielberg do a great job in showing us, not simply telling us.  The opening scene is a mill worker removing the numbers 784 from a sign which reads “784 days since our last accident” and replacing it with the number “1.”  The audience knows an accident has occurred, likely a tragic one (since it is hard to believe that no one has suffered any scrapes or bruises or pulled muscles throughout the entire plant for over 2 years). ”Something happened,” you’re thinking to yourself, “and it was bad.”  The movie then cuts to a scene in a boy dressed in his Sunday’s best, sitting in the swing in his yard, ankle-deep in snow.  And then you’re like, “poor kid.  He lost someone.”  The makers of the film could have started with a narrative – “hey audience, there’s been a bad accident at the mill and it affects this boy.”   Yawn.  Instead, they show us, they don’t tell us.  And by showing us, their message is so much more effective.

When trying to persuade others, whether in a motion, at a hearing or at trial, try to paint pictures with your words.  Create images to show your audience your point. Don’t be satisfied by simply telling them.  Show them.  You could tell the jury that a witness was not at a good vantage point to see the accident.  Or you can create an image of how little he could see what was going on, showing the jury that he couldn’t have possibly seen what happened.  Think about how and when you can show more, versus simply telling, to make your advocacy more compelling, more dynamic and make yourself more of a storyteller.  

In “RULE OF EVIDENCE 703 — Problem Child of Article VII (Sept. 19, 2011),” I wrote about how Federal Rule of Evidence 703 is generally ignored and misunderstood in current federal practice.  The Supreme Court, in deciding Daubert, shifted the focus to Rule 702, as the primary tool to deploy in admitting, as well as limiting and excluding, expert witness opinion testimony.  The Court’s decision, however, did not erase the need for an additional, independent rule to control the quality of inadmissible materials upon which expert witnesses rely.  Indeed, Rule 702 as amended in 2000, incorporated much of the learning of the Daubert decision, and then some, but it does not address the starting place of any scientific opinion:  the data, the analyses (usually statistical) of data, and the reasonableness of relying upon those data and analyses.  Instead, Rule 702 asks whether the proffered testimony is based upon:

These days, many depositions are videotaped.  If a deposition is being videotaped, is there still a need for a court reporter?  Is a stenographic (“hard copy”) transcript necessary?  This issue is currently the subject of debate in Texas and across the country, with interest groups taking positions on both sides.

 On one hand, hard copy transcripts have practical advantages over video depositions.  First, hard copies allow attorneys to take part in their favorite pastime – copious amounts of highlighting and tabbing.  Additionally, most cases require careful attention to the facts, and hard copy transcripts make it easier to cite to the record.  In short, whether it is due to personal preference or the manner in which people learn, some people will probably always prefer working with hard copies.

At the same time, video depositions have unique advantages over hard copy transcripts.  In the era of C.S.I., jurors expect attorneys to use technology.  And video evidence is often more compelling and entertaining than a transcript.  Video depositions capture mannerisms, body language, and attitudes that would otherwise go unnoticed.  Because of this, adverse witnesses and opposing counsel are more likely to mind their manners when being videotaped.  Of course, there are exceptions to every rule, and video footage of a witness losing control can be pure gold.  For example, when the witness in the infamous Texas Style Deposition told the examining attorney that he had “a case of incipient verbal diarrhea,” a paper transcript would never have done it justice. 

As other commentators have noted, both video depositions and traditional hard copy transcripts have their place.  When used correctly, each form of “transcript” compliments the other.  Because of the limitations of videotape-only depositions, however, traditional hard copies (and court reporters) are here to stay . . .  for now.

The Wall Street Journal (“WSJ”) reported in the October 3, 2011 edition of the paper about the start-up of three brand new companies that were started with the purpose of entering what is considered the “fledging alternative litigation funding market.”  You can view the article here.