by Sterling Anthony, CPP
Effective demonstrative exhibits leave jurors with a better understanding of the expert’s opinions than what they would have been left with otherwise. Not all demonstrative exhibits meet that criterion. Those that don’t are a waste of time, materials, and energy; worse, they can be counterproductive, if they confuse jurors.
The expert must know his/her opinions thoroughly, but not just in the professional sense; for, demonstrative exhibits should explain in ways that are juror-friendly. Any expert may utilize demonstrative exhibits; however, the more technology-immersed and/or exotic an expert’s field, the greater the need.
Demonstrative exhibits should fulfill their purposes, without competing with the expert; for example, exhibits should not allow jurors to read ahead of the expert’s comments. A good policy in that regard is for any one exhibit to feature only one opinion and to present it succinctly. Jurors won’t resent multiple exhibits as long as the purpose and effectiveness of each are evident. Jurors want to understand the issues. Jurors want to feel intelligent. Demonstrative exhibits should meet those jurors’ wants.
Experts should be mindful that their demonstrative exhibits might end up in the jury room during deliberations; but, of course, experts are not allowed in those sacrosanct quarters. The significance is that the exhibits should be designed to be understandable in the absence of the expert.
Demonstrative exhibits should not be any more hi-tech than needed; for example, transparencies can be just as effective as PowerPoint. Certain equipment, such as laptop computers and flash-drives, can be brought to court by the expert. Anything not as transportable should be arranged well in advance; furthermore, the expert should arrive early to court to confirm that all needed equipment is present.
As advance preparations go, none is more important than that between the expert and the retaining attorney. The expert contemplating demonstrative exhibits should get permission from the retaining attorney; after all, the development of such exhibits represents billable time by the expert. In requesting permission, the expert must explain why demonstrative exhibits would be helpful; after which, the discussion can proceed to the nature and quantity of the exhibits.
Often, the retaining attorney will be able to provide valuable guidance; however, regardless of how involved the attorney is in the development of the exhibits, it’s the attorney who must clear the way for their use, whether by stipulation from opposing counsel or by court approval. The expert who appreciates the time element never takes an eleventh-hour approach.
Depending on the types of demonstrative exhibits, the expert might have to involve other parties, such as graphic artists, animators, model-makers, etc. Here, as with anything that affects billing, the expert must receive permission from the retaining attorney.
No matter who else is involved in the development of the demonstrative exhibits, it’s the expert who should be ever-diligent. That’s because jurors aren’t concerned with the history of the exhibits, and nor should they be. Jurors, nonetheless, will form opinions of the exhibits, and by association, form opinions about the expert, and even the attorney who called him/her to the stand.
In summary, the expert who uses demonstrative exhibits needs to demonstrate mastery over those tools.
Sterling Anthony, CPP, is a consultant and expert, specializing in packaging, marketing, logistics, and human-factors. His contact information is 100 Renaissance Center P.O.B 176, Detroit, MI 48243. 313-531-1875. www.thepackagingexpertwitness@gmail.com