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Multimedia Trial Presentations Increase Chances of Defense Verdicts at Trial

By Gerald A. Klein, P.C.

Although the costs of taking cases to trial seems to increase each year, increased expenditures have not resulted in in­creased defense verdicts.  Good defense cases have been lost because insurance companies and their counsel have not taken advantage of technology that makes trial presentations more interesting, more memorable and more persuasive for juries.  Some insurance companies have not taken better advantage of revolution­ary trial presentations incorporating video and computer graphics either because their trial counsel have not kept up to date regarding the newest technology or because of misconceptions about its cost.  The purpose of this article is to show insurance companies how reasonably priced multimedia trial presentations increase chances of defense verdicts at trial.

The Need for Multimedia Trial Presentations

We live in a fast paced world where attention spans are short.  People elect their national leaders based on sound bites.  Most movies are under two hours long because people cannot sit still for longer periods.  Nevertheless, we expect jurors to watch trials attentively for many days or even several months.

In addition, people rely more each day upon television screens to receive the bulk of their information, from news to stock quotes, to bank accounts to the Internet.  As the general population becomes less literate, less attentive, and increasingly dependent upon television screens for information, trials have become more technical, more document oriented, more tedious and boring.  Trials which once focused upon simple credibility issues such as who ran the red light now focus upon sophisticated expert testimony and scientific evidence.  It is therefore not surprising that modern juries have difficulty understanding and remember­ing the voluminous documentary and technical evidence received in most trials.  The failure of juries to understand cases has cost the insurance industry hundreds of millions of dollars each year.

The Multimedia Trial Presentation Entertains and Educates

A trial is "Show and Tell." Inexperi­enced attorneys tend to emphasize too much "tell" and not enough "show."  Not surprisingly, bored and confused jurors often do not understand the evidence or the issues.  Psychological studies show that jurors remember only a tiny fraction of what they hear, more of what they see and tend to understand best what they both see and hear.  With the use of visual aids jurors focus upon the evidence when it is presented and recall evidence more readily during deliberations.

Use Computer Graphics and Video During Presentation of Evidence. In an age where people receive the majority of their information from a television screen, it is surprising so many lawyers still rely on testimony to convey important con­cepts and information.  Rather than take advantage of media that allows them to "show and tell," most lawyers still rely upon the spoken word.  Effective lawyers recognize that to keep jurors interested in the evidence, it is not enough to tell jurors about documents or other evidence; the jurors must see the evidence as well.

Presenting documentary evidence through a witness without allowing the jury to see the evidence at issue is like describing colors to the blind.  The jury will not grasp the significance of what is being discussed and ultimately will disregard it.  Likewise, describing how an accident occurred is not nearly as effective as showing how it happened.

Multimedia trial presentations using video, animation and computer graphics allow the jury not only to hear what is being described but help the jury visualize what is being discussed as well.  The net result is that multimedia trial presentations improve jury interest, help jurors under­stand concepts better and enable jurors to remember the information during delib­erations.  While even the finest technology will never turn a bad case into a good one, in a close case, effective multimedia presentations usually tip the scales in favor of the side that uses them.

Types of Tools Available In Media Trial Presentation

Modern trial lawyers have a much wider range of demonstrative evidence available to them than ever before, and they should select their "media" carefully.

Tangible evidence, including the very objects at issue in a trial, can be the most riveting exhibits.  For example, the knife used to kill the victim is likely to be a very important point of jury focus.  Jurors will find it more interesting and informative to examine the murder weapon rather than hear a police officer describe it.  Such exhibits are intrinsically interesting and can rivet jury attention, both in court and in the jury room.  Unfortunately, many cases do not involve a simple piece of physical evidence or the physical evidence is too bulky to show.  In such a situation, the trial lawyer must look for alternative means of conveying physical evidence.

The most common example of demonstrative evidence is photographs.  Photographs can show property in dispute, the nature of an injury near the time the accident occurred, or the condition of a vehicle after an accident.  However, pictures record a snapshot in time, and generally are inadequate to convey a sequence of events.  For example, a photograph will not convey how an accident occurred.  Accordingly, a trial lawyer must evaluate whether still photographs accomplish his or her purpose.

Videotape has a wider range of uses than simple photographs.  Video presentations are inherently more interesting than photographs, because they convey action photographs cannot show.  Videotape allows trial lawyers to record how destructive testing was conducted or show accident reenactments.  Obviously, it is difficult for the trier of fact to reject what he sees with his own eyes.

Videotape depositions play a key role in multimedia trial presentations.  A skilled trial lawyer can weave a damaging party admission in a videotape deposition into opening statement, the presentation of evidence and in closing argument.  When videotapes and documents are transferred onto laser disk, the key admissions of several deponents can be played back to back, instantaneously exposing contradictions or inconsistencies.  Obviously, impeachment is even more devastating when the witness is forced to watch himself make contradictory statements on a television monitor.

Perhaps few pieces of demonstrative evidence are as misunderstood as computer animation.  The mystique goes away when we realize that computer animation is nothing more than moving charts.  However, computer animation allows the trier of fact to visualize objects, places and events which otherwise could only be described.  The most typical use of computer animation is to show how an accident occurred, how a mechanical device functions or how a human organ works.  For example, computer animation could be used to show the viewpoint from a driver immediately before an accident to show that the driver did not have sufficient time to brake after seeing a child run into the street.  Animation has also been used to show how pollution spread or how subsidence will cause increasing damage to a structure.  Perhaps one of the most interesting uses of animation is not evidentiary but to emphasize important case themes.  This kind of animation can be used in final argument.

Costs of the Multimedia Trial Presentation

The equipment required for a typical trial will be two to four television monitors, a computer CD-Rom player, a laser disk, and possibly an "Elmo."  Insurance companies can reduce rental charges by requiring law firms they hire to keep the equipment on hand.  The cost of purchasing the equipment is somewhere between $7,500 and $10,000, and, therefore, is not an overwhelming burden.  Rental of this equipment can run anywhere from $800 to $2,500 a week, depending upon the rental company and amount of equipment required.  If equipment rental costs are not included, the comparative cost of a traditional multimedia trial presentation is very small.  Documentary exhibits can be displayed to juries so the juries can read the documents for as little as $100 per color chart.  Animations can be done for as little as $5,000.

Concerns about Jury Reaction to Multimedia Trial Presentations

A common concern expressed by insurance companies regarding multimedia trial presentations is that the jury will feel the defense is overwhelming the "underdog."  The failure of one side to use the technology can indicate lax preparation or minimal interest in the case.  If the visual presentation makes the issues more clear to the jury, it is unlikely jurors will punish the side that brought clarity to the issues simply because the other side did not use the technology.

In Conclusion

As we close in on the 21st Century and beyond, juries will become increasingly accustomed to learning by use of television monitors.  Litigants who refuse to recognize this fact and continue to try cases using illegible poster boards for documents and photographs, or worse, no demonstrative evidence at all, will find their chances of success at trial to be marginal at best.  Insurance companies must focus upon the best use of their litigation dollars.  The incremental cost of using multimedia trial presentations over more traditional presentations pales in comparisons to the hundreds of millions of dollars lost each year because jurors did not understand the case.

This article first appeared in Claims People, June 1996.

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