Adding a Little Bit of Hollywood to Your Trial Todd M. Raskin Mazanec, Raskin & Ryder Co., L.P.A. 34305 Solon Road 100 Franklin s Row Cleveland, OH 44139 (440) 248-7906 traskin@mrrlaw.com
Todd M. Raskin is a founding partner of Mazanec, Raskin & Ryder, Co., L.P.A., which has offices in Cleveland and Columbus, Ohio, and Lexington, Kentucky. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He has tried more than 100 cases to conclusion in 35 years of private practice in courts throughout Ohio and the Midwest. He is a member of the Defense Research Institute (DRI), The American Board of Trial Advocates (ABOTA), the Association of Defense Trial Attorneys (ADTA), the Federation of Defense and Corporate Counsel (FDCC), and the Litigation Counsel of America (LCA). Todd has been selected as a Best Lawyer in America for Civil Rights Law (2012-2017) and an Ohio Super Lawyer for Municipal Law (2012-2017), in addition to being named Civil Rights Lawyer of the Year in Cleveland by Best Lawyers in 2013 and 2017.
Adding a Little Bit of Hollywood to Your Trial Table of Contents I. Introduction...5 II. Demonstrative Exhibits vs. Demonstrative Evidence...5 III. Sometimes You Have to Pay Money to Save Money...5 IV. Admissibility of Demonstrative Evidence...6 Adding a Little Bit of Hollywood to Your Trial Raskin 3
Adding a Little Bit of Hollywood to Your Trial I. Introduction The millennial generation, people born between 1981 and 1997, now make up the largest segment of the U.S. Workforce, numbering approximately 53.5 million according to Pew Research Center. They are likely to number between one third and one half of your jurors. They are comfortable with the digital world we live in, having grown up with computers. As a group, they process information visually, so it is important to communicate visually throughout the trial, arbitration, or mediation. Whether appearing as counsel in trial, mediation, or arbitration, our job is always the same. It is up to us to be as persuasive as possible by providing a storyline which is easily understood and accepted by the jury, arbitrators and/or mediator. When people hear information, on average they retain only 10% three days later. However, if a relevant image is paired with that same information, on average people retain 65% of the information three days later. According to a study conducted by 3M at the University of Minnesota, people who use visual aides are 43% more persuasive than those who don t. The study established that visuals can improve communication effectiveness; students perceptions of the presenter; and speaker confidence. A number of studies have also established that a speaker who uses visual aids will be perceived by his or her audience as being better prepared, more credible, more dynamic, and more persuasive than one who does not. II. Demonstrative Exhibits vs. Demonstrative Evidence The demonstrative aid or exhibit such as models, diagrams, charts, photographs, animations, and timelines are used to help to explain or illustrate testimony or other evidence during a trial, arbitration, or mediation. The key word is help because they are necessary to explain the testimony and/or help the finder of fact in understanding the testimony. They are used for demonstrative purposes only, and are not substantive evidence. In contrast, demonstrative aids can become demonstrative exhibits and a part of the record if a proper foundation is laid and the demonstrative meets all of the rules of evidence as described more fully herein. III. Sometimes You Have to Pay Money to Save Money As we all know, the vast majority of lawsuits settle prior to trial. In fact, some studies have found that as little as two percent of all civil cases filed in the United States federal courts are actually tried to a judge or jury (see Civil Justice Survey of State Courts, Bureau of Justice Statistics, U.S. Department of Justice, 2005). As a result, we as attorneys should be thinking about using demonstratives throughout the litigation process, and certainly for the purposes of mediation and/or arbitration. The cost of litigation is increasing at a rapid rate and clients are appropriately cost-conscious. That said, however, incurring the cost of creating a persuasive demonstrative aid can often result in a very favorable settlement without the client having to incur the cost of trial preparation and trial. If the case is one which you believe is likely to proceed to trial, if the alternative dispute resolution process is unsuccessful, then the demonstrative aid can be created so that it can easily meet the federal or state rules of evidence on admissibility with the advice and assistance of the expert witnesses who will be testifying on your clients behalf at trial. When an effective demonstrative aid is used during ADR, it can persuade not only opposing counsel, but the plaintiff as well - often times resulting in very favorable settlements for the civil defendants. This can be espe- Adding a Little Bit of Hollywood to Your Trial Raskin 5
cially true if the plaintiff and plaintiff s counsel realize that in order to combat the visual, they will have to make a substantial investment in their case in order to combat the visual and win the battle of persuasion at trial. In the types of cases that we typically defend, the defense often has the advantage when creating demonstrative aids and/or exhibits. We have the benefit of recreating the events by reenactment in utilizing the officers involved in the case and securing the scene so that the reenactment can occur without interference. We can utilize embedded audio recordings in a visual presentation so that the jury can hear and see what a police dispatcher is saying to the officers as they are responding to a call. The use of demonstrative exhibits which meet all of the rules of evidence are a necessity in police shooting and police pursuit cases. In order to persuade the jury that the officers involved acted reasonably and responsibly, the jury has to believe that the course of action chosen by the officers was appropriate and that there was no other reasonable alternative in order to protect the health and safety of those involved. In cases such as these, it is critical that the defense grab and retain the moral high ground by telling a story which enables the juror to feel good about voting against the plaintiff. In these types of cases in particular, demonstrative exhibits which comply with the rules of evidence are a must. They enable the juror to put himself or herself in the position of the responding officer and subliminally realize that the officer s reaction was appropriate and justified. IV. Admissibility of Demonstrative Evidence Courts have wide discretion in determining whether or not evidence should be admitted at trial. See Barnes v. General Motors Corp., 547 Fed.2d 275, 277 (5th Cir. 1977); U.S. v. Gaskell, 985 Fed.2d 1056 (11th Cir. 1993). The burden is on the party offering a courtroom demonstration or experiment to lay a proper foundation establishing a similarity of circumstances and conditions although the conditions of the demonstration need not be identical to the event at issue, they must be so nearly the same and substantial particulars as to afford a fair comparison and respect to the particular issue to which the testimony is directed. U.S. v. Gaskell, 985 Fed.2d 1056, 1060; citing Barnes at 277; quoting Illinois Central Gulf Railroad Company v. Ischee, Mississippi, 317 So.2d 923, 926 (Miss. 1975). Further experimental or demonstrative evidence like any evidence offered at trial should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. See generally Federal Rule of Evidence 403. Virtually every jurisdiction has concluded that in order for visual evidence or any experimental or demonstrative evidence to be admissible, the evidence must be relevant under Federal Rule of Evidence 401, and it must not be prejudicial, confusing, or misleading under Federal Rule of Evidence 403. Therefore, the evidence must have a tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. Federal Rule of Evidence 401. To satisfy the test of relevance, it is critical that the evidence accurately depicts the facts or circumstances of the individual case. Federal Rule of Evidence 403 requires that the evidence is presented in a manner such that its probative value is not substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Federal Rule of Evidence 403. It is within the sound discretion of the judge to decide whether or not to admit evidence at trial. Often, the judge makes a ruling in a manner of seconds at a side bar conference with counsel during the trial. In order to increase the likelihood that the proffered demonstrative evidence will be admitted, counsel should be prepared to provide the court with a bench brief, not exceeding a page in length, which addresses all of the reasons why the proffered demonstrative exhibit complies with Rule 401 and 403 of the Federal Rules of Evidence or if the trial is conducted in state court, the corresponding state rules of evidence. Additionally, before the trial actually starts, counsel who intend to utilize demonstrative evidence should pro- 6 Civil Rights and Governmental Tort Liability January 2017
vide it to opposing counsel for his or her review in sufficient time to allow counsel to raise any objections to it with the court. In some jurisdictions, there are local rules of court which require the exchange of demonstrative evidence so many days prior to trial. Compliance with that rule is a necessity. Even if there isn t a rule requiring exchange of demonstrative evidence prior to trial, it is still a good idea to do so. You do not want to put yourself in a position where opposing counsel can claim trial by ambush. In all likelihood, by the time the demonstrative exhibit is provided to opposing counsel, there will be little if any time left for an exhibit contradicting it to be created. While on the subject of bench briefs, I routinely have them prepared for each issue which I anticipate will occur during the course of the trial. For instance, rulings on motions in limine are preliminary rulings and always subject to reconsideration by the court as the evidence comes in. Have a bench brief articulating your client s position on the subject of each motion in limine. This is likewise true of any other evidentiary issues that are of significance. I tried a case in a jurisdiction in which the treating physician did not have to prepare a report as a predicate to testifying. In contrast, the expert medical witness was required to prepare a report. My trial strategy was to utilize only the testimony of the treating physicians rather than hire an expert. I anticipated that plaintiff s counsel would oppose the testimony of the treating physicians on the grounds that they had not written reports. We had a bench brief prepared for each of the treating physicians who were scheduled to testify, and each was permitted to testify offering his or her opinions concerning the plaintiff s medical condition and cause of death without ever having written a report. It was my belief that the jury would find more persuasive the testimony of the plaintiff s own physicians, and that proved to be the case as we won the trial. The use of demonstrative aids and demonstrative evidence can be and often is a game-changer. In trial, they are a necessity. For pretrial and alternative dispute resolution purposes, they are almost as important. The legal spend for the defense of Constitutional tort cases comprises virtually all of the loss adjustment expense to insurers, self-insureds, and risk retention groups. To the extent that a case can be resolved, short of the cost of preparing for trial, substantial savings can result. I rarely see an anticipated trial budget in a Constitutional tort case that comes in under $100,000.00. Often, it is four or five times that amount. That doesn t necessarily mean that each demonstrative aid or exhibit is costly to produce. We have created PowerPoint presentations in-house, and often during trial, in order to capture the ebb and flow of the trial as it occurs. If you have a battle of experts, it is easy to create a PowerPoint with a picture of each expert testifying for the plaintiff and defense, and one or two lines under each picture explaining why the jury should believe your experts and disbelieve the plaintiffs. Likewise, when trying a case where the issue is proximate cause, I have used an image of a brick wall to reinforce to the jury the distinction between causation and damages. It is okay for jurors to feel sympathy for Plaintiff s injuries, but I want them to have the mental image of the brick wall separating the Plaintiff s damages from the person or entity legally responsible for causing them. To be sure, more sophisticated demonstrative aids and evidence should be prepared by the talented individuals who specialize in doing just that. They have the skills and technology to weave persuasive messages and themes into trial counsel s overall story in support of defendant s position. Adding a Little Bit of Hollywood to Your Trial Raskin 7