The Legal Advocate

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Monthly Archives: August 2016

Demonstrative Evidence and Demonstrative Aids: Is There Really a Distinction?

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written by NITA guest bloggers Anastasia Pallagrosi and Michael J. Dale

Many lawyers and law students are familiar with Nita Liquor Commission v. Cut Rate Liquor and Jones, one of the most famous National Institute of Trial Advocacy fact patterns. In Nita Liquor Commission, the owner of a liquor store is charged with a civil violation of Nita Liquor Commission Regulations for knowingly selling alcoholic beverages to an intoxicated person, the famous disheveled Walter Watkins.

During discovery, the Commission provides the investigative report of Liquor Commission Investigator James Bier, who was present during the night of the alleged violation. In his report, Investigator Bier describes the event while seated in his car, which was set up for surveillance across the street south of the liquor store. Now, suppose Investigator Bier takes the stand, and the Commission lawyer asks him to give a full description of the scene, specifically the intersection. Also suppose that the lawyer, while questioning Investigator Bier, uses a diagram of the intersection to help jurors fully understand the investigator’s location and that of the liquor store. Is this diagram admissible demonstrative evidence, or is it a demonstrative aid?

To state the obvious, the party who bears the burden of proof must present relevant evidence of material facts. The means of proof can take various forms: live and recorded testimony and exhibits that can be real, documentary, illustrative, and demonstrative. But all have a common purpose: to prove or disprove, either independently or together with other evidence, any issue of material fact that is relevant to the case. Such means of establishing issues play an essential role at trial; they are commonly referred to as substantive evidence[1].

This blog post focuses on demonstrative evidence. Unfortunately, it is not easy to define the term demonstrative evidence. Indeed, no evidence code nor the Federal Rules of Evidence provide any specific definition, the sole reference being in the Advisory Committee’s Note to Federal Rule 611[2]. Additionally, the Advisory Committee’s Note to Rule 401 states that so-called background evidence—such as charts or photographs—must be universally admitted at trial as an aid that can provide a better understanding of facts[3]. One of the crucial questions, then, is this: What is the difference, if any, between demonstrative evidence and demonstrative aids?

Terms such demonstrative evidence and demonstrative aids are often confusing because of the absence of a clear definition of demonstrative evidence in the Federal Rules, where these terms are often loosely used. Courts refer to demonstrative evidence as any means used to display or explain other testimonial, documentary, real proof, or a judicially noticed fact[4]. Demonstrative evidence is, in short, any visual aid and object used to help the witnesses to demonstrate oral testimony[5]. It can assume various forms, such as models, charts, photographs, videos, or diagrams[6]. This kind of descriptive evidence can be depicted visually in an illustrative exhibit[7], which can be pre-made, prepared by counsel, or made by a witness during testimony[8].

Demonstrative aids, sometimes referred to as visual aids or illustrative aids, are tangible pieces of information that would seem to be exactly the same as demonstrative evidence. Notwithstanding the use of different terms, which contributes to confusion as to terminology, demonstrative aids serve the same purpose as demonstrative evidence[9]. They help the witness to better demonstrate oral testimony, and at the same time provide jurors with a better understanding of facts[10]. For example, a skeletal model referred to by an expert witness to describe the plaintiff’s bone damages in a tort action is demonstrative evidence—once, of course, the lawyer has requested that the model be marked as an exhibit[11]. On the other hand, not all the aids used to help the witness in her testimony are necessarily demonstrative evidence[12]. So, for example, the oral testimony of a witness is evidence, but a notepad containing bullet points from the same oral testimony is a demonstrative aid[13].

However, demonstrative evidence and demonstrative aids differ in one significant way: the former can be admitted into the jury room for the deliberation, whereas the latter cannot, the reason being that demonstrative aids simply implement or substitute for what the lawyer would be able to show with his own words[14]. That being said, the lawyer who wants an aid to be available to jurors must offer a demonstrative exhibit[15]. Of course, this does not mean that the exhibit will be automatically admitted into evidence. Indeed, in the event the exhibit is excluded by the judge, it may still assist the witness during testimony[16]. The issue then becomes how demonstrative evidence can be admitted at trial.

When speaking about admissibility of demonstrative evidence, one should keep in mind that the only limitation, other than relevance, is the judge’s discretion[17]. Federal Rule of Evidence 611(a) sets out the standards for the use of evidence, stating that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. The judge may admit or exclude demonstrative evidence, and her other ruling will be usually sustained unless it is shown that there was an abuse of discretion[18]. Moreover, to have the demonstrative aid admitted into evidence, the lawyer must be able to satisfy the test for admissibility, which includes a competent witness with personal knowledge except experts, relevant information, and a proper foundation for the exhibit’s admissibility. Despite the fact that an aid may be relevant, to have it admitted into evidence requires an additional showing that the evidence should not be excluded due to unfair prejudice, delay, because it misleads the jurors, or consumption of time which outweighs its probative value[19]. Thus, a judge must balance the potential prejudice that may derive by admission of demonstrative aids, whose value may be more substantially prejudicial than probative under Federal Rule 403[20].

So what if the aid is a diagram depicting the scene, as in the Nita Liquor Commission case? It might be helpful to briefly explain how this would work pragmatically at trial. First, Investigator Bier would have to make the scene relevant, the area depicted in the diagram. Then the diagram would have to be recognized by the witness, meaning that the witness—here, Investigator Bier—would have to testify that the diagram depicts a certain area which with he is familiar. He would also have to give an explanation as to why he is familiar with the area. He would then testify that the scene depicted in the diagram is a fair and accurate representation of the area on the date in question. After laying foundation for the diagram, the lawyer may offer the illustrative exhibit “for identification” into evidence. However, the diagram might not to be to scale. It need be fair, accurate, and of assistance to the witness. In this situation, opposing counsel may ask for a limiting instruction to the jurors. And the final word, of course, rests with the judge.

In conclusion, then, the key distinction between a demonstrative aid and demonstrative evidence appears to be that the latter comes into evidence and can be reviewed by the jurors during deliberations.

Anastasia Pallagrosi is a graduate of Roma Tre University, Rome, Italy, and a dual degree student at Nova Southeastern University College of Law, where she is a research assistant to Professor Michael J. Dale. She can be reached at anapallagrosi@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

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[1]Robert D. Brain & Daniel J. Broderick, “The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Value,” 25 U.C. Davis L. Rev. 957, 972 (1992).
[2]Fed. R. Evid. 611.
[3]Fed. R. Evid. 401.
[4] Brain & Broderick, supra note 1, at 968–69.
[5] Edward J. Imwinkelried, Evidentiary Foundations 130 (Lexis Nexis, 7th ed. 2008).
[6] Brain & Broderick, supra note 1, at 968–69.
[7] Courts will usually allow the use of exhibits if they can help jurors better understand the facts of a case. However, terminology is loose as to whether such exhibits should be identified as “illustrative” or “demonstrative.” Indeed, exhibits are used both for demonstrative and illustrative purposes. See Scott D. Lane & Fred Lane, Lane Goldstein Trial Technique § 12:29 (3d 2016).
[8] Brain & Broderick, supra note 1, at 969.
[9] Mary Quinn Cooper, “The Use of Demonstrative Exhibits at Trial,” 34 Tulsa L. J. 567, 567 (1999).
[10] Id. at 568.
[11] Imwinkelried, supra note 5, at 132.
[12] Cooper, supra note 9, at 570.
[13] John F. Rooney, “The Importance of Demonstrative Evidence,” Melick & Porter Blog (Aug. 27, 2016), http://www.melicklaw.com/?t=40&an=9758.
[14] Id.
[15] Imwinkelried, supra note 5, at 132.
[16] Cooper, supra note 9, at 570.
[17] Imwinkelried, supra note 5, at 131.
[18] Michael Sudman, “The Jury Trial: History, Jury Selection, and the Use of Demonstrative Evidence,” 1 J. Legal Advoc. & Prac. 172, 183 (1999).
[19] Fed. R. Evid. 403.
[20] Id.

Williams v. Simonson, Second Edition

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In the second edition of Williams v. Simonson by Professor Anthony Bocchino and David A. Sonenshein, plaintiff Mary Anne Williams seeks to recover damages for gender discrimination and the tort of defamation and is suing David Simonson, Christine Jefferson, Nita University, and the Patterson Institute. Williams seeks back pay, lost pay, damages, and reinstatement. There are five potential claims in this case file which is set in a university environment.

Designed for advanced advocacy training, Williams v. Simonson involves difficult legal and factual issues for jury resolution and requires the examination of expert witnesses. Please note, Williams is available in four versions: Trial, Faculty, Plaintiff, and Defendant, and are each sold separately.

Retail Price: $38

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Oh, the Places I Did Go . . . What the NextGen Experience Did for Me . . . and for NITA!

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written by NITA guest blogger, Jayme Cassidy

JaymeCassidyTheodor Geisel inspires me to this day. I’m not sure why this childhood Dr. Seuss addiction remains with me as an adult. It’s a brilliant gift to have the capability to simultaneously educate and engage an audience. Open any one of his books and the learning experience begins immediately. The reader and the listener are transported to a captivating place and the results are astounding. His fables take us on journeys that expose us to diversity. His characters coach us on the power of thinking outside the box and trying new things.

The More that You Learn, the More Places You’ll Go[1]
My experience as a NITA NextGen faculty was a real-life journey of discovery. A fascinating accumulation of enlightening endeavors that began in January 2016. A novice educational excursionist, I found myself zig-zagging across the country. By mid-July, I was seven programs richer.

Each one of my destinations was a melting pot of cultural nuances with assorted legal backgrounds in attendance. I knew early on from Geisel that “the more that you learn, the more places you’ll go.[2] “ Each trip, I strived to improve my own skills and my ability to engage those around me. Bringing my “A game” became my new mantra. Geisel’s Oh, the Places You’ll Go![3] is an inspirational piece that encourages the reader to push forward, upward. This is what occurs when one attends a NITA program.

Midway through my journey, I grew a tad weary. The luggage became heavy and I could not think clearly. Miraculously, at my next stop, I met eager public service program participants. These attorneys touch the lives of many, people who cannot afford legal counsel. These attorneys yearned for the expertise to represent their indigent clients competently and soundly. That’s when I had my a-ha moment. My participation as a NITA NextGen extended beyond the participants, faculty, and destinations. It touched heart, soul, and essence of the choices I’ve made to be, at times, a public sector attorney. The suitcase fatigue and homesickness quickly dissipated. Time for the “double A game.”

Why Fit In When You Were Born To Stand Out?[4]
When asked how I felt about receiving the award in January, I responded, “I am excited about this opportunity to be able to interact with colleagues from around the country who are eager to enhance their professional skills!”

The common characters in all the NITA programs are the attorneys. Coaches, with innumerable skills, collectively demonstrating how to successfully try new things and think outside the box. The participants: some are old, some are new, but all are present to improve what they do.

For some attorneys, the programs are a process for cementing a foundation of skills. Many attorneys attend to refine and enhance. Either way, by the end of the program it’s “98 and ¾ percent guaranteed[5]” you will see a stand-out performance.

Don’t Cry Because It’s Over. Smile Because It Happened[6]
My journey as a NextGen took me much further than distance and places. It was an expedition where I witnessed human intellectual achievement during each NITA program. My bag is still packed and I’m anxious to see old friends and new, at the San Diego Trial Skills Program and the Deposition Program at Nova Southeastern University.

I could never imagine the places I would go, the attorneys I would teach, the things I would learn, the people that I would inspire, and, most importantly, the gifts from those who inspired me.

For faculty and participants, it’s an intense dynamic opportunity to enhance skills and cultivate relationships. Surrounding myself with attorneys who have the passion and ambition to teach and learn by performance is intoxicating . . . an adult addiction.

I’m sure Dr. Seuss would have told me the moment my journey began that the award was not just for me, but for the entire NITA family.

My NITA journey, my adult addiction, will never end!

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[1] Dr. Seuss, I Can Read With My Eyes Shut! (1990).
[2] Id.
[3] Dr. Seuss, Oh, the Places You’ll Go! (1990).
[4] Dr. Seuss.
[5] Dr. Seuss, Oh, the Places You’ll Go! (1990).
[6] Credited to Geisel. Cannot be confirmed.

August 2016 Executive Director’s Letter: Counsel will take notice…Trial Bar’s Next Gen

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“The Court . . . will particularly welcome . . .” —Grooming the Trial Bar’s NextGen

U.S. District Judge William Alsup issued this simple notice in Oracle America, Inc. v. Google, Inc., Dkt C 10-03561 N.D. Cal. (Nov. 6, 2015).

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Judge Alsup’s Notice speaks volumes in pointed terms:

  • The first sentence addresses the need. Disaggregated, its logic makes these points
    • Practitioners in court must have experience.
    • The next generation must learn by experience.
    • Their senior lawyers bear the obligation to train through experience.
    • Accomplished trial counsel must create in-court appearances by juniors.
    • The next generation needs opportunities from their very early years.
    • This applies even to lead counsel who may seem essential because of their renown (as can be inferred from the prominence of lead counsel in this case).
  • The second sentence addresses the hesitation:
    • Lest firms or lead counsel would avoid risk by turning (repeatedly) (only) to senior experience, comfort is offered: the Court will “particularly welcome” the junior lawyer to argue the motion.

Are you pondering this? Whether motions are the only place a court would welcome a junior who may fumble words or lack polish? Whether this case and this judge are unique? Whether lead counsel should wait for an order that puts out the welcome mat?

Don’t ponder. Lead.

Lead, with the secure knowledge that a firm lives by the promise of its future. A client invests its loyalty by the firm’s attention to its own future and to the experience built into lower billable rates.

Lead, knowing that the judiciary is taking us there and, really, it is not their job to make us do what we should do. See NextGen in Courtroom (seventeen federal district court judges have taken steps to remedy the problem; resolution pending for circuit-wide principle in Ninth Circuit to encourage orders and local rules on letting junior lawyer handle matters before the court).

I gained my own experience as lead counsel in my early years, yet I understand law firm pressures. As a partner for over twenty-three years in, respectively, a litigation boutique, a mid-size firm, and a global firm, I witnessed law firm economics transform. Thus, what I hope you will ponder is the structure and systems of the firm. We need to spread courtroom opportunities like fertilizer across the entire field of talent. Nearly every lawyer had wanted more experience in their earlier years, before they became young partners. It seems risky, yes, to ask seniors and stars to share when others will not be as polished. It is scary to bring in juniors knowing they may stumble or hesitate while forming their next sentence.

Don’t fear. Act.

Act, to provide opportunities that produce experience early and often. Start a series of discussions within your firm leading to mutual commitments to lead. In your own docket, find the opportunities for your juniors to star, and assign them. Coach the juniors. As they stand in court, sit by their side.
Act, to establish initiatives by your city and state bars so that even reluctant lead counsel will feel the ethic of sharing the courtroom—even if they yearn themselves for experiences once denied.

Act—at this precise juncture—by turning to NITA to help you get this done. When the judiciary rang the same bell forty-five years ago—a different time—NITA was founded for this precise mission. We do a great job. And we have adapted to the pressures of modern practice.

NITA is here for the lawyers who missed their big challenges eight or ten years ago. (It’s never too late.) NITA is here for the lawyers you need to groom for their first in-court challenge. NITA is here for beginners as well, and law students. NITA works for the more senior lawyers who have been out of court too long, or have a trial looming, or simply want to kick up their energy a notch.

How do you get lawyers ready for their in-court experience, at whatever level of the challenge? We partner with your firm’s own planning. We love serving you.

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

Arizona Center for Law and Society: Opening Fall 2016

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This fall, Arizona will open their new law school, Arizona Center for Law and Society, just steps away from the legal, political, and economic heart of Arizona. NITA will be holding our Deposition Skills: Arizona program here in November. We are very excited to see what this new law school has to offer. To read more on Arizona Center for Law and Society, click here.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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