The days when an attorney can simply try a case based solely on oral presentation and testimony are gone. With the advent of technology, jurors are now more visual than ever. The negative effect is that their attention span is short and these same jurors are now more impatient than ever. While they may not tell you, these jurors expect trials to be seamless, quick, and entertaining. To hold their attention, the attorney not only has to present seamless testimony, he or she must employ compelling and powerful demonstrative evidence that will educate, inform, and captivate the juror’s attention. That is why the use of compelling and persuasive demonstrative evidence is as important as ever. The point of this paper is to help answer some basic questions to the attorney and his legal team about the use of demonstrative evidence, but also provide ideas and tips on how to create and use demonstrative evidence to persuade jurors. Along the way, another goal is to create and use these demonstrative evidence to increase and enhance the value of your case.

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HOW TO EFFECTIVELY CREATE AND USE PERSUASIVE
DEMONSTRATIVE EVIDENCE AT TR IAL
Edward K. Le, Esq.
Edward K. Le, PLLC
135 Park Ave N.
Renton, Wa 98057
(425) 336-2255
Email: edward@edwardkle.com
www.edwardkle.com
The days when an attorney can simply try a case based solely on oral presentation and
testimony are gone. With the advent of technology, jurors are now more visual than ever. The
negative effect is that their attention span is short and these same jurors are now more
impatient than ever. While they may not tell you, these jurors expect trials to be seamless,
quick, and entertaining. To hold their attention, the attorney not only has to present seamless
testimony, he or she must employ compelling and powerful demonstrative evidence that will
educate, inform, and captivate the juror’s attention. That is why the use of compelling and
persuasive demonstrative evidence is as important as ever. The point of this paper is to help
answer some basic questions to the attorney and his legal team about the use of demonstrative
evidence, but also provide ideas and tips on how to create and use demonstrative evidence to
persuade jurors. Along the way, another goal is to create and use these demonstrative
evidence to increase and enhance the value of your case.
A. WHAT IS DEMONSTRATIVE EVIDENCE?
By its term, demonstrative evidence is any type of evidence that can be used to
demonstrate or illustrate a point, concept, or impression to the jury. It does not have to be
used in a trial setting and you will find it equally useful when preparing a settlement or
mediation memorandum. It can be a picture, a photograph, drawing, illustration, blueprint,
recording, sketch, PowerPoint slide, re-creation, animation, X-ray, MRI, and/or anything that
your mind can conceive to help you and your witness explain an argument or point. Basically,
it is anything that may be displayed or referred to without being formally admitted into
evidence. It is distinguishable from substantive evidence which are admitted into evidence at
trial and taken back into the jury room. That is where the primary difference between
substantive and demonstrative evidence lies: substantive evidence may be submitted and used
by the jury during deliberation, while demonstrative evidence does not. Demonstrative
evidence is further distinguished from real evidence in that it has no probative value itself, but
serves merely as a visual aid to the jury to understand the verbal testimony of the witness.
B. WHY SHOULD YOU USE DEMONSTRATIVE EVIDENCE?
There are many reasons why you, as the attorney or a legal staff member, should use

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demonstrative evidence. Below are the top seven.
First, because jurors expect you to use it. Jurors now live in a society where information
is delivered in a multi-media format. Most of them grew up in an age where information is not
delivered through a talking head, as witnesses will appear to them if they only testify verbally, but
through a content rich format where information is conveyed both orally and visually. In recent
years the “CSI effect” has invaded jury pools and resulted in entertainment-hungry jurors. While
some attorneys may dismiss this effect as unimportant, it is a reality that all trial attorneys must
consider. Without it, the attorney and his legal team are at a significant disadvantage to the
attorney or legal team that does.
Second, because it helps facilitate juror understanding of difficult concepts or points
where a verbal description by itself may be lost. Without a doubt, one of the most important
feature of demonstrative evidence is the ability to explain difficult liability or medical issues
which are difficult to articulate conceptually. Even in minor soft tissue cases, I find that using
a visual illustration that explains the mechanism of injury goes a long way in persuading jurors
to fairly compensate my client. With more complex cases, the use of demonstrative evidence
is almost mandatory. For example, where liability is disputed, having a drawing or a sketch
of the highway where the collision occurred is invaluable in understanding why the defense’s
theory of the case should be rejected. Additionally, in a products liability case, actual images
of the product that injured my client often means the difference between jurors believing my
version of the story or the defense. This is especially true when you, as the attorney or their
assistant, have to explain more complex medical injuries such as cauda equine syndrome,
thoracic outlet syndrome, complex regional pain syndrome, TMJ, or other types of injuries
that are not the garden variety soft-tissue neck and back case. The use of demonstrative and
visual aid in these types of cases often means the difference between a few thousand dollars
or hundreds of thousands of dollars.
Third, because it helps defeat the defense strategy of injecting ambiguity into the case.
As most plaintiff attorneys know, ambiguity is the defense weapon of choice. Ambiguity is
what torpedoes our cases. When jurors do not understand or grasp what we are trying to
prove, research shows they fill the information gap with their own life experiences and mental
shortcuts, which can be adverse to our theory of the case. Therefore, it is imperative that we
help them understand even the most basic issues in our case. For example, I have tried cases
in conservative jurisdictions where even plaintiffs have lost rear end collision cases. Often,
the justification used by these same jurors is that “it was just an accident” and no harm was
intended. In preparing for trial, I would create diagrams and schematics of the collision to
focus not on the collision itself, but on the series of deliberate choices the defendant willfully
ignored that led to the “accident.” I then focus my argument to show through the diagram
how the defendant had choices to make that would have prevented this incident but he/she
deliberately choose to violate those safe choices. I may couple the diagram with a rhetorical
question in closing argument: if someone came into a china shop and break the merchandise,
should they be excused from paying because “it was an accident.” In the same way, if the
defendant broke your client’s enjoyment of good health on a highway instead of a fruit bowl
in a china shop, should they be excused because “it was an accident.”

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Fourth, because it helps increase the value of your case. As any juror will tell you after
a trial, there is often a disconnected between what jurors think testimony meant versus was
said and described by the witness. For example, the invasiveness of a surgical procedure is
sometimes lost during testimony or a medical finding issue. The procedure may be perceived
as relatively minor when in fact, the opposite is true. For example, if your client suffered a
neck injury and went through a cervical fusion, there will be a disconnect in how jurors
perceive the pain and suffering your client experience and what he/she actually suffered
through if all they hear is medical jargons delivered in a scientific manner from the doctor.
But if in addition to the testimony, they are able to see the procedure your client endured, they
will develop a stronger visceral reaction which could justify a bigger verdict. This is what I
call the “wince factor” of a case: the more that jurors are able to viscerally experience and
feel what your client went through after seeing your demonstrative exhibit, the more they will
fairly compensate your client.
Fifth, because it helps jurors retain information better. Modern jury research validates
that jurors retain visual information at much a greater rate if verbal and visual information
is concurrently given to them, the same research shows that demonstrative and visual
evidence can help tilt the scale in terms of factual retention. In fact, there are studies which
now shows that jurors retain 75 percent of the information given to them visually. Hence,
if you now ask most lawyers and jury consultants, there simply is not a more effective way
to communicate information than through demonstrative evidence. In fact, psychological
studies suggest that even after 72 hours, most people retain only about 20 percent of what they
see and 10 percent of what they hear. However, their retention rate rises to 75 percent when
they simultaneously hear and see the facts depicted. These figures are especially important
when a trial is expected to last several days or weeks.
Sixth, because it makes you look prepared and competent. Competence promotes
authoritativeness and credibility. As most of you know, trials are all about impressions and
juror engagement. In the vast majority of cases I have tried, it was never the ornery judge
or hostile defense attorney who worries me. It is the juror who yawns or falls asleep during
my case in chief. There is nothing more I dread than that. Yet, interestingly enough, the
majority of attorneys who try cases nowadays still primarily rely on verbal presentation as
their sole means of communication. Unfortunately, most jurors especially the Gen X and
millennial jurors who grew up in the age of social network and media of Youtube, the
internet, and mobile search, their attention span is less than 30 minutes. Ask yourself the
same question: how long would you sit through a newscast that is delivered only from
verbal delivery without any visuals or images before changing the channel? These jurors are
no different and may resent you for wasting their time when they sacrificed their work and
family time to sit on your case.
Seventh and most importantly, because it helps you win your case. Make no
mistake; demonstrative evidence is a powerful tool of persuasion that not only tilt a trial
in your favor, but often can significantly increase the value of your case. I cannot tell you
the number of cases where I was offered very little money which later resulted in a
significant recovery because I was able to simplify a complex liability or damage concept
on a “pin of a head” through a visual exhibit. If you can constantly ask yourself how you

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can visualize an argument, then you will go a long way towards the path of victory.
C. WHAT ARE THE LIMITS ON THE USE OF DEMONSTRATIVE
EVIDENCE?
Whether to allow the use of a demonstrative exhibit is a matter strictly within the trial court's
discretion. Because its purpose is to illustrate testimony, demonstrative evidence is authenticated
by the witness whose testimony is being illustrated. By definition, demonstrative evidence is not
offered for its truth, but rather to illustrate or clarify substantive proof. Consequently, the
foundation necessary for demonstrative evidence is fairly basic. The main foundational elements
necessary for the use of demonstrative evidence are: (a) the demonstrative exhibit relate to a piece
of admissible substantive evidence, (b) the item fairly and accurately reflects the purported proof
for its sue, and (c) the item is deem helpful to the jury. Like substantive evidence, it must fulfill
four criteria of admissibility: 1) relevancy, 2) materiality, 3) competency, and 4) have probative
value that outweighs its prejudicial value. See ER 401, 402, and 403. Hence, as long as the
exhibit has a tendency to make more or less probable the existence of any fact, goes directly to
the purpose of illustration, is understandable and does not mislead, and does not inflame the jury
without having overriding probative value, it is admissible.
In fact, Washington state have generally adopted a liberal rule in allowing the use of
demonstrative evidence at trial. See Spokane v. Patterson, 46 Wash. 93, 94, 89 Pac. 402 (1908)
where the Supreme Court held:
“It is the common practice in the courts to receive private or unofficial maps, diagrams,
models, or sketches for the purpose of giving a representation of objects and places which
generally cannot otherwise be as conveniently shown or described by witnesses, and when
proved to be correct or offered in connection with the testimony of a witness they are
admissible as legitimate aids to the court or jury.”
Consequently, for over 50 years, Washington courts have set forth a policy admitting
demonstrative evidence in a wide range of circumstances. For example, in State v. Tatum, 58
Wn.2d 73, 360 P.2d 754 (1961), our ashington Supreme Court reiterated its long-standing policy
in favor of using demonstrative evidence at trial:
It should be noted that this Court has for many years encouraged the admission and use of
demonstrative evidence, including photographs.
58 Wn.2d at 75.
Indeed, recognizing the technological age in which we live, many Washington courts
have approved of efforts by attorneys to explore imaginative methods of presenting evidence.
For example, in Norris v. State, 46 Wn. App. 822, 733 P.2d 231 (1987), the Washington Court of
Appeals approved of a series of drawings prepared by a professional artist of the scene of an
accident where no photographs were available. Each drawing was identified and authenticated at
trial by witnesses who gave the artist the information. The Court approved of the use of this
evidence in sweeping terms:

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The State's objection seems largely motivated by the novelty of the evidence. Novelty in
an exhibit, however, does not make it inadmissible.
46 Wn. App. at 827.
In simple talk, if it is not misleading, argumentative, quotes hearsay text or testimony,
grosses people out, incite their passion, irrelevant to an issue in the case, or unduly
cumulative, there is no restriction against its use. The general test for admitting demonstrative
evidence is whether it will truly help the jury understand other relevant matters. To make it
admissible to present to the jury, all a witness needs to do is testify that the exhibit fairly and
accurately reflects what the exhibit depicts and that it will help him/her explain a point to the
jury. In fact, its use has been liberally construed by courts for admission.
D. WHAT TYPES OF DEMONSTRATIVE EVIDENCE CAN I USE TO
ENHANCE MY PRESENTATION?
There is no limit to the types of demonstrative exhibits that can be used and created. Below
are some samples and suggestions of demonstrative evidence that you can create and use but by
no means, are intended to be below exhaustive.
1. Photos
Photos are not only the most common demonstrative evidence used at trial, they are likely
the most ubiquitous form of demonstrative evidence. There is truth to the saying, "a picture is
worth a thousand words." I do not recall when I ever try a case, write a mediation memorandum,
or present an arbitration statement without the use of photos. Photos are not only used to
document my client's injuries, but to compare and contrast what the client was like before the injury,
especially if there are scarring or more graphic injuries such as open wounds, amputated limbs, or broken
bones. In high property damage collisions, photos can be used to establish the severity of the
collision or the impact of force. In addition, I often use photos of the scene of the incident or the
premises to explain the series of events leading to my client’s injuries. For the damage portion
of my case, I also frequently used family photos of my client to humanize them to show the
extent of the harms and losses they suffered by showing activities they used to enjoy versus the
disability and limitations they now experience.
2. Videotapes
Like photos, videos are another category of demonstrative evidence I frequently use.
For example, in a personal injury case, I would obtain a copy of the dash cam video of the
police vehicle to provide the jurors as much sensorial impressions of the scene as possible. If
my client has a family video of him/her showing them being active, I use that to compare and
contrast what they were like before the crash. Further, in more serious injury cases, I would
sometime present a “day in the life” video of my client to depict the client’s limitations and

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impact on his activities of daily living. The video helps provide jurors with insight into what
my client goes through day in and day out so that these same jurors can build empathy or a
connection with my client. Having said that, I think a prudent attorney and his staff should
be careful not to repeat playing the videos too much, or else risk desensitizing the jurors and
losing the emotional impact of the video.
3. Anatomical Models and Illustrations
In personal injury cases, the use of anatomical models and illustration is essential. I can’t
remember ever trying a personal injury case without the use of anatomical models or illustrations.
They assist the doctor or expert to explain a plaintiff's specific injury and to explain difficult
medical concepts that are difficult to articulate otherwise. In fact, jurors have told me afterwards
that the use of such illustration and models was essential to their understanding of the case.
4. Charts
Charts are incredibly useful versatile evidence. They can be used to summarize important
points, summarize past and future special damages, compare and contrasts the testimony and
qualifications of witnesses, and point out key facts essential for the jury to know. They are
particularly useful in opening and closing arguments to organized key testimony in support of the
theory of the case. I also use them to summarize the voluminous information that I intend to
present or have already presented in arguments.
5. Blowups of Medical Records and Illustration
There is nothing with a greater impact on a jury like using a foam board to highlight
key medical records or an illustration that graphically describe your client’s injuries during
witness presentation so that you can them use over and over during the process of a trial. It
sits in a corner of the courtroom so jurors can see it at all times and psychologically embed it
in their minds. These blow ups not only help you chart your client’s treatment time-line but
also reaffirms to the jury the authenticity of your client’s injuries. In turn, these documents
will create much more impact on the jury and exhibit information that are vital to the case's
support. When the blow up is continually used and kept on display during the testimonies,
it will eventually and psychologically embed in the minds of your jurors, creating a
reinforcing effect that is hard to erase. For this reason, I often have blowups of medical
records in addition to creating Power Point slides during trial.
6. Imaging or Diagnostic Studies
In personal injury cases, jurors often come into trial skeptical of the plaintiff’s injuries.
Hence, if there are imaging studies such as X-rays, MRIs, CT-Scan, SPECT/PET scan, ultrasound
studies, or EMG studies that are supportive of your client’s injuries, you should incorporate it into
a poster board or PowerPoint slide to objectify your client’s injuries. They not only help armed
your favorable jurors to argue on your behalf during jury deliberation but also convert hesitant

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jurors who may have been on the fence about supporting your case. Indeed, anytime there is
objective evidence that can support your case, you should continually refer to it during trial.
Further, because most hospitals, radiological, and diagnostic centers now provide these imaging
or diagnostic studies in electronic format, it is not difficult to obtain and put them into a PowerPoint
slide or to blow them up on a poster board which can then be used during opening, closing, or
witness testimony. In my opinion, putting them on poster board and leaving it inside the courtroom
where jurors can continually observe the exhibit will further reinforce the fact that you have
objective evidence to support your case.
7. Timelines
Timelines are essential tools to both educate the jury about critical issues in your case as
well as create favorable impressions about the nature of your case. In trials, I often use timelines
to highlight the length and consistency of my client’s treatment to rebut the defendant’s claim that
he/she is malingering or that there was a pre-existing condition. The timeline help emphasize the
continuity of care the client received and to compare/contrast the familiarity my client’s treating
doctors developed over time with my client versus that of the defense examiner. They also help
me argue projected need for future medical care and future earning capacity loss by showing the
need for continuing care and the continuation of his/her time away from work.
Additionally, in products liability and premise liability cases, I use timelines to highlight
the number of other similar incidents that have occurred with the product or on the premises by
showing these events on the timeline. Because jurors often respond negatively to the defendant
who had notice of other similar incidents but chose to take little or no action towards prevention,
the timeline often prove critical to swaying jurors to the plaintiff side of the case even in these
traditionally tough liability cases.
In medical malpractice cases, I use a timeline to underscore the errors or omissions that
were committed by the hospital or health providers leading to the event. Because jurors are much
more lenient to the medical defendants in these type of cases, I use the timeline to overcome a
higher psychological barrier of proof that these jurors often require in their mind. Hence, I use the
timeline to demonstrate that the misconduct committed to my client was not a one-time
error/omission or event, but rather a systematic pattern of misconduct that resulted from a series
of errors and misconduct to help overcome the psychological resistance from these jurors.
8. Summary of Injuries
In many personal injury cases, the client suffers not just a single but multiple injuries. To
emphasize the seriousness of their medical condition, a summary of injuries listing all of the
injuries on one page highlights the extent of the client’s disability and limitations. The summary
can be used in conjunction with the expert or with the client to underscore what they have suffered
and gone through. With experts, the compounding effects of medical comorbidity can be
explained using the chart as to why each site of injury lengthens the process of recovery for another
injury. For example, if your client suffers chronic pain and develops depression resulting in
cognitive deficits, the medical literature supports that the length of his or her injury will be
compounded. Hence, by showing all of the listed injuries on one chart will allow your doctor to

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present a compelling argument regarding why your client needs future medical care or why he/she
cannot return to work sooner. Additionally, you can use the summary during closing argument to
justify a higher request for general damages.
9. Storyboards
Storyboards are series of hand-drawn still images with written details about the action
and content below each image. In cases where the facts are complex and confusing, storyboards
are used to explain the story of a case in a coherent manner without losing the powerful and
persuasive effects of storytelling. For example, in a motor vehicle crash case, the storyboard can be
used to show the sequence of an event and the series of wrong choices the defendant made leading
to the crash. This is a much compelling technique than just verbally describing the incident because
it allows jurors to be immersed in the story and feel like they are a participant rather than an observer.
In fact, I prefer storyboards over computer animation, which are much more expensive to create
and more difficult to fix whenever a judge sustain an objection against its use. In these
instances, I use storyboards to ensure that the key events in my case are covered and focus the
jurors’ attention at the same time.
10. Recreation and Reenactment
In products and premise liability cases, I find that a simple recreation or reenactment of
an event often is the most persuasive evidence in the case. I would engage my engineer, human
factors expert, ergonomist, or safety expert reenact the event that my client described on video to
illustrate how the incident occurred and then recreate another video to show how the incident could
have been prevented with a better design, more regular repairs, or adopting a simple fix. For
example, I recently represented several clients in separate cases who sued their landlord after
falling down the stairways at their apartment complex. In most instances, these cases are tough
because jurors usually and viscerally blame the plaintiff for not “watching where they are going”
or for ignoring an open and obvious condition that they knew or should have known.” However,
by showing a reenactment of how the fall occurred with a recreation of what safety features could
have been employed by the landlord to prevent the fall, I was able to present a compelling argument
that even if the tenants lived on the premises for years, they could not possibly know the hazards
posed by the stairways until the time they needed it the most: the actual moment of their fall.
Hence, if you can reenact an incident and compare it to what could have been done to make it
safer, you have a powerful arsenal to help you convince jurors about your theory of the case.
11. Computer Animation
Of all the demonstrative evidence available, computer animations is by far the most
expensive to create. It is also the most recent to be adopted for use in the courtroom. Outside
of actual reenactments, animation is arguably the best form of evidence to allow the jury to see
firsthand what occur in an accident, event, or medical procedure. Because it is dynamic
versus static evidence like a document, use of animation captivates and holds jury attention
the best. Hence, if you ever worry about boring or complicated facts in your case, your case
may justify the use of animation to visually and sensorially engage your jurors and sway them

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to your theory of the case. Jurors who only listen to an oral presentation oftentimes will
create their own differing versions of the process or event. However, with animation, all
the jurors see are the exact same event at the same time and to some degree become witnesses
themselves to the actual event or incident. They are not just audience members, but part of
the scene as they see the process step by step. However, you should be forewarn that computer
generated animation can be extremely expensive, so you must carefully weigh the benefit of
its use. For example, an animation of a single process can cost from a few thousand to tens
of thousands of dollars.
E. WHERE CAN I GO TO CREATE DEMONSTRATIVE EVIDENCE?
Creating and using demonstrative evidence requires planning and imagination. However,
it does not require a hefty budget. What it does require is a deep reflection on the practical realities
of your case and a careful consideration of what the value of the case is. However, through careful
planning and thought, you can certainly create persuasive and compelling demonstrative evidence
not only that can be done on a shoestring budget, but to be recycled for future use. Below are a
number of considerations on how you can create demonstrative evidence. However, they are not
intended to be exhaustive and with some ingenuity, you will find that some of the best
demonstrative evidence are simple everyday objects that you can use.
First, you can hire an expert to create a custom made exhibit. Unless the case justifies it, I
don’t particularly recommend this route because it is the most expensive. However, there are
occasions where the most persuasive demonstrative evidence are the ones that are custom made.
With custom exhibits, you will need to connect your expert with illustrators and animators who in
turn, work together to create a custom made exhibit that is specifically tailored to address the
particular issues of your my case. You should then seek a pre-trial ruling before its use so that if
there are any changes the judge feels warranted, you can have your illustrator or animator make
such modifications before presenting it at trial.
Second, if your budget does not justify hiring an illustrator or animator, you may find it
particularly useful to just purchase recycle stock illustrations and animation. There is no shortage
of online medical illustration and animation companies who are willing to sell recycled work
product or stock samples of their work at a fraction of the original work. Outfits such as
medicalexhibits.com, medivisuals.com, gettyimages.com, scientificanimations.com provide stock
medical illustrations and videos that are friendly on the budget but can give you powerful exhibits
that address the particular issues in your case. Another equally viable option is purchasing
software to create your own timeline. For example, since the time I purchased TimeMap software,
I have created well over hundreds of timelines which I have incorporated into my settlement
demands, mediation memorandums, arbitration materials, and trial exhibits. For as little as $300,
the software has given me immeasurable returns through the years.
Third, if buying stock illustrations and videos still stretches beyond your budget, there is
still the friendly internet and search engine that always provide free materials. In fact, I now make
it a frequent practice to first see if I can first find materials on Google, Google images, Flickr,
YouTube, and other website first before I consider hiring an expert illustrator or animator. For the

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most part, these web portals and search engines provide over 90% of my trial demonstrative
materials. I send my doctor or expert the link, like a YouTube animation video or a Google image,
and have my doctor or expert determine whether the material fairly and accurately depict what it
purports to be. I then ask these experts whether using such exhibit will aid them in explaining
their testimony before a jury. Without exception, these doctors and experts are always appreciative
that they have multimedia materials that can aid them to explain their testimony. Additionally, I
have sometimes connected my IPad or computer to the Web to load a YouTube video or image in
order to play it before a jury. I don’t just use them for trial. I frequently use YouTube and Google
images routinely now even in my own practice with my own clients to help my client better
understand their medical conditions and issues. In some occasions, I have used YouTube and
Google images to help my clients prepare for their defense medical examination. Indeed, versus
other big law firms with huge trial budgets, the Web has been a great equalizer in my practice to
preparing my clients and experts for trials.
Fourth, join a WSAJ listserv and ask to borrow the exhibit. As many of you already know,
the WASJ listserv is a great resource for many small firms and solo practitioners. It is likely that
many of the demonstrative exhibit that you are seeking probably has already been created,
purchased, or prepared by a fellow colleague who may be willing to share it with you. In fact, I
myself have been asked by many colleagues who are preparing to try their first case to share my
PowerPoint slides, anatomical models, animation videos, and even audio/video equipment with
them. Unless we are in trial, I usually have no hesitation in loaning out these materials so it does
not hurt to ask us.
Fifth, create it yourself. If you can learn how to use PowerPoint to incorporate images and
videos into your presentation, you yourself can create memorable demonstrative exhibits to use at
trial. For example, because our firm conducts our own video deposition, I find it much easier to
take snippets out of deposition videos that I can incorporate into my PowerPoint presentation at
trial, especially during openings, closings, or cross-examinations of an adverse witness. In these
instances, jurors have told me that being able to see the witness’ demeanor and body language
versus just hearing their testimony made a huge impression on how they perceive that witness.
F. WHAT TYPE OF OBJECTIONS SHOULD I ANTICIPATE FROM OPPOSING
COUNSEL?
You cannot create and use demonstrative evidence without first anticipating what type of
objections your opposing counsel will make. In fact, it is both prudent and economical to know
what type of objections your opponent will raise before you waste your time with creating an
expensive or time consuming exhibits. As I indicated in section C, there are a few restrictions that
you should know beforehand on the use of demonstrative evidence so that you tailor your exhibit
to avoid these objections.
First, ask: is the exhibit relevant to what I or my witness are trying to prove? If so, is its
probative value substantially outweighed by the danger of unfair prejudice? A potential problem
with certain demonstrative evidence, such as videos, in-court demonstrations or computer
generated animation, is that the jury may be unfairly prejudiced by such a graphic representation

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of an event. For example, if you intend to use graphic images of your client’s injury, make sure to
have a legal memorandum written in advance to support the use of such images to maximize your
ability to use it.
Second, ask: does it mislead the jury in any way? Does it have texts which are
argumentative? Most judges, while liberally admitting the use of images, will conversely
refuse to allow the use of texts or sounds which serves to as substituted argument to the jury.
Hence, it is important if you show an image or a video, that no texts or sounds be included.
Third, ask: is the exhibit cumulative, necessary, or cause undue delay? One of the
great problem of preparing for trial is that we create and use too many exhibits as we can to
support our case. This can be seen as overkill by the judge. Hence, before using the exhibit,
ask ourselves whether there is another exhibit that may be more effective. Remember that
demonstrative evidence, is, by its very nature, a demonstration of evidence, not a repeat of
evidence. In addition to choosing your exhibits and visual aids carefully, resist the urge to use
all the available exhibits to support your case.
Finally, a word of advice. A common objection or tactic I have encounter from the
defense is that the demonstrative evidence was not disclose in discovery. Do not fall for
this objection. The civil rules does not require a party to disclose demonstrative exhibits
until they are created. Since most demonstrative exhibits are prepared either a few weeks
or just weeks before trial, argue that you do not have a duty to produce something that has
yet been created until its completion. Having said that, I would urge you to share your
demonstrative exhibits with your opponent and defense counsel as early as practicable or
seek an agreement on its use. At the very least, you will know what the objection is in
advance to rebut it or to preemptively file a Motion to Pre-admit the demonstrative
evidence.
G. ARE THERE ANY ADDITIONAL TIPS CAN YOU PROVIDE ABOUT USING
DEMONSTRATIVE EVIDENCE
Yes. The following list below are based upon years of my own trial and error using
demonstrative evidence.
First, determine what point you are trying to make. Just because you can use it does not
mean you should use it. In fact, you should never use demonstrative exhibits just for the sake of
doing it. There is always a danger that it may be use by your opponent to support his/her case.
Hence, before using the exhibit, first make sure that the point or concept are you trying to illustrate
is accurately reflected in the exhibit. If your exhibit is vague or confusing, your opponent may
figure out a way to use your exhibit against you.
Second, pay attention to the details. Jurors will pay attention to the smallest details and
any mistake will reflect badly on your credibility or at worse, will be seen as a deliberate attempt
to mislead. Hence, make sure that you carefully scrutinize the exhibit before actually showing it
to the jurors. I learned this lesson the hard way years ago during a trial. My theory in that case

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was that a round metal rod in the cushion of a seat caused my client’s thoracic spine to fracture.
However, before trial, I could not find a round metal rod that was similar in dimension so I
substituted it with a rectangular rod that did have similar in dimension, even if not in shape.
Despite pointing out this only difference during my direct examination, several jurors later told
me they thought I was trying to mislead them. Although this did not prove fatal to my case, I learn
that if I ever offered any demonstrative exhibit again, it would have to be accurately similar in
detail to the object I was trying to demonstrate.
Third, make sure you show it to your expert and get their agreement to use the exhibit at
trial. The last thing you want to do is surprise your expert and have them use an exhibit that you
created for them at trial. One, they may not agree with your exhibit. Two, he/she may point out a
tiny inaccuracy which gives fodder for the defense to argue against its use. Three, the exhibit may
not support the concept they are trying to convey. Either way, your credibility and that of your
case will be diminished before these jurors. Hence, it is a good idea to always sit down with your
expert and ask them if the exhibit you created would be helpful for them to use. It is possible they
may direct you to a better exhibit or one they are more comfortable with.
Fourth, make sure that the exhibit is not argumentative or testimonial in any way. Judges
usually allow non-argumentative demonstrative exhibits for the purpose of assisting the jury.
However, if a demonstrative exhibit is argumentative or in any way testimonial, it will likely not
be allowed.
Fifth, make sure to disclose it to your opponent before using it. This will assure that there
are no interruptions when you present it. Ask them if they have any objections. If so, bring it up
to the Court for approval. At the very least, you will know in advance whether or not you will be
able to use it during your presentation.
Sixth, ask your staff, friends, and family to provide input and feedback about your
demonstrative exhibit. For example, after you created an illustration, reenactment, image, or
video, ask your colleague, friend, or family member what they think of it. Does it help you prove
a point that you are trying to make? The reaction you receive will be invaluable. This will allow
you to know whether judges or jurors will react favorably to your exhibit or not. Further, it will
allow you to make necessary modifications if you discover that your exhibit has a tendency to
create confusion or misunderstanding. Also, your colleague, friend, or family may help show you
a better concept or way to improve the clarity and persuasive power of the exhibit.
Seventh, always have a backup plan by making sure your exhibit can be easily and quickly
modified. For example, if a judge sustain an objection to the wording or labels on your exhibits,
you need to be able to make changes quickly to comport with the rulings. Hence, if the exhibit is
stored on a computer, you can make the necessary changes and generate a new exhibit.
Additionally, it is always a good practice to keep texts, labels, and other notations on your exhibit
to a minimum, not only to increase its admissibility, but also to give your witness the opportunity
to provide a more detailed explanations and contemporaneously enhance his/her credibility or
authority in front of jurors.

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Eighth, make sure your exhibits can be clearly seen by all jurors. The whole point of using
demonstrative exhibits is so that they can persuade jurors or the viewer. However, if the exhibits
cannot be clearly seen by the jurors, this would be a futile effort. Hence, make sure that the image,
video, chart, or diagram is large enough to be seen. If there are labels and notations, make sure
that the font and letter size is large enough to be read.
Ninth, keep it simple. Do not make your demonstrative exhibit too complicated. Often
demonstrative exhibits designed by experts or “exhibit professionals” suffer from too much detail.
Remember that you are trying the case to a jury of lay persons, and that it is your job to simplify
the point or concept that you are trying to make.
Tenth, if you intend to play a video, reenact an event, or use PowerPoint slides, make sure
to rehearse using the demonstrative evidence before presenting it. It is always a danger to play a
PowerPoint or reenact an event for the first time in front of the jury. An exhibit that is supposed
to tell the jury “x”, but does “y” will be devastating to your case. Hence, you will need to play it
beforehand. If something can go wrong with an exhibit in the courtroom, assume that it will. The
more time that passes while you and your team are trying to figure what is wrong with your exhibit,
the more damage that will be done to your case and credibility.
Finally, make it interesting and entertaining. If it is not interesting, it may lose juror interest.
Worse, it will fail to hold the juror’s retention of the key points you are trying to make. For
example, do not use bullet points in PowerPoint slides. They are boring and distract from the
jurors’ ability to listen to what you have to say. If your slide cannot capture the jurors’ attention
immediately upon showing, it will be cognitively discarded in the juror’s mind. Hence, show the
exhibit to your colleague, friends, and family for their input about the interest or educational value
of an exhibit before using it.
H. CONCLUSION
Make no doubt about it. Demonstrative evidence is important. I can either help you
win your case and it can help increase the value of your case. In the majority of the time, you
will find that the value and advantages of using it substantially outweigh the risks of not using
it. This paper is intended to offer you some insight on how to use demonstrative evidence
effectively at trial. However, you may find that the tips and advice given may also aid you at
preparing effective settlement demands, mediation memorandums, and arbitration prehearing
statements as well. I encourage you to use this paper not as an end, but as a starting point.
Along the way, if you find more creative or helpful ideas, I welcome you to share it with us so
that we may all improve our collective advocacy skills and serve our clients the best that we
can.