6 Keys to Using Graphics During Expert Witness Testimony

Anjelica Cappellino, J.D.

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— Updated on February 17, 2021

6 Keys to Using Graphics During Expert Witness Testimony

Trial GraphicsIn our increasingly technology-driven world, it is no surprise that people process information differently in comparison to prior generations. With the advent of smartphones, tablets, and more readily available Internet connections, we have the ability to obtain a nearly limitless amount of information with great ease and at rapid speed. This information is also presented in various mediums, with computer graphics, design, audio, and video capabilities constantly advancing to provide us with a more in-depth, realistic, and hands-on learning experience. Trends show that the same advancements are occurring in the courtroom, with study after study indicating that jurors respond well to visuals. In order to effectively adapt to this generation’s more technological and visual learning style, experts must utilize techniques that are similar to those used by the average person when processing new information. Visual graphics have become increasingly popular in the courtroom, and when used correctly, can effectively enhance an expert’s testimony. Below are some tips on how to use graphics to better help a jury understand the facts at issue and successfully put forth the expert’s opinion.

1.) Decide What You Are Trying to Convey

 With so many options in terms of graphics, it is easy to fall under the allure of the newest and flashiest mediums. However, it is important to remember the overall message and substantive content that the expert is conveying to the jury in order to decide what type of graphic works best. What do you want the jury to take away from the testimony? If the purpose of the expert’s testimony is to establish one relatively straightforward or specific fact, a simple chart or diagram might suffice. Whereas a more complex matter that is broader in scope may warrant an elaborate animation to highlight the importance of each presented fact. The ultimate goal is to ensure that the graphics are aiding in the jury’s understanding of the testimony. So while the “bells and whistles” of the latest technology and software presentation systems may be necessary for certain topics, it is important that the graphics do not overshadow or distract from the jury’s learning process.

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2.) Confirm That the Graphic Can be Used ahttps://www.expertinstitute.com/request-your-expert-witness/?utm_source=blog&utm_medium=blog&utm_content=6-keys-trial-graphics&utm_campaign=rich-text-ctat Trial

 Visual graphics, like any demonstrative evidence, are subject to the applicable evidentiary rules of the jurisdiction. Under Rule 401 of the Federal Rules of Evidence (and under certain state laws that have adopted such a rule), evidence is deemed relevant if it has any tendency to make a fact more or less probable than it would be without such evidence and the fact is of consequence in determining the action. Under Rule 403, a judge may exclude otherwise relevant evidence if its probative value is substantially outweighed by the danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly cumulative evidence.” Due to the influence that visual evidence tends to have on a jury, an opposing party may object on any of the above grounds (i.e., photographs depicting a graphic or disturbing injury may unfairly inflame the jury, or a lengthy animated presentation on topics already discussed may be considered a waste of time or cumulative). Objections made by opposing counsel at trial cannot be predicted. But the risk that graphic evidence will be deemed inadmissible can be minimized if each exhibit is carefully assessed before presenting it to a jury.

3.) Know Your Audience

In the same regard, it is important to tailor the use of visual graphics to your audience, i.e., the judge and jury. While visuals oftentimes enhance a jury’s memory and understanding of the information, they must be used while also abiding by the judge’s rules and the practical capabilities of the courtroom. First, always check the local rules of the presiding judge to confirm that your choice of graphics is allowed during trial. Some courts have rules regarding the use of computers in the courtroom, and some jurisdictions have a blanket prohibition on all electronics unless otherwise specified by court order. Even if there is not a specific ban, some courtrooms are simply not equipped to handle different types of visual presentations. Depending upon the exhibit’s design, HDMI cords, split screen projectors, or even just a close by electrical outlet may be required but cannot be provided within the confines of that particular courtroom. Even when handling print versions of visual graphics (such as large-scale charts or product models), it is critical to keep in mind the physical constraints of the courtroom. A life-size car replica used to reconstruct an automobile accident may sound wonderful in theory, but if such an exhibit cannot realistically fit inside a courtroom without impeding the flow of trial, it will not be of much use.

4.) Be Prepared!

Before any graphics or visual technology is introduced at trial, both the lawyer and expert should be well-versed in its content. Ideally, the information contained in the graphic should be rote knowledge to the expert so if something unforeseen happens to the presentation, the testimony can successfully continue. Particularly when utilizing computer graphic design, 3-D animation, or other visuals that require the in-court use of a computer or software programs, it is important to be familiarized with the technology and to be able to handle any troubleshooting issues accordingly. This may require having duplicates or hardcopy versions of the computer graphics handy as a contingency plan. While technology is a great tool, a frozen computer screen or stalled software program during trial will do more harm than good if the expert and attorney are not prepared and have a backup plan.

5.) Make the Testimony Interactive

Today, many (but not all!) courts are equipped with technology (i.e., projectors, computer monitors, touch screens etc.) that enables the jurors to closely inspect any visual evidence or demonstrative aids. When possible, encourage the jurors to conduct their own examinations of the materials. Life-size models that can be passed around the

jury box (i.e., a product at issue in a products liability case, or a prototype of a particular part of the anatomy in a medical malpractice action) help keep the testimony interesting while actively engaging the jurors. This method enables the jurors to absorb the information not just visually, but also tactilely as well.

6.) Avoid Cognitive Overload

Once one graphic is successfully presented to the jury, it may be tempting to provide more. However, no human possesses infinite working memory storage and there may come a point where there is simply too much information for the jury to effectively absorb and remember. Therefore, it is critical to reduce the amount of extraneous information presented to the jury so that they may focus on only the pertinent facts at issue. This may be something as simple as avoiding putting too much text in a chart or diagram, which can make it difficult for some jurors to understand or read from afar. Likewise, computer graphics should also be clear enough to fully view, and all images should be crisp, adequately spaced apart, and of high resolution quality.

Overall, trial graphics should be used to simplify the expert’s testimony, not further complicate it. Especially as technology advances, there is a nearly endless supply of mediums that can be utilized. However, as with any piece of evidence or demonstrative aid, each graphic should only be used if it enhances the jury’s understanding of the testimony and can effectively support the expert’s opinion and case theory.

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