Techniques Our Injury Trial Attorneys Use to Present Medical Evidence to Build Cases, Pt.1
But before we start talking about the types of evidence and how to get it admitted, we need to first examine the strategy on how to present evidence to a jury.
Jurors learn just like "students"
Experienced personal injury trial attorneys understand that persuasion involves effective "teaching skills" especially involving presentations - demonstrative and illustrative - necessary to educate a jury as to the virtue of a client's case. Successful educators know that there are three kinds of learners in the typical class. Students (like jurors) may be auditory, visual, or kinesthetic learners (there is also a small group known as global learners, but such jurors benefit from all types of evidence and are omitted here). Auditory learners are educated by what they hear and place less importance on what they see. Visual learners are educated by what they see and are less able to process information from what they hear. Kinesthetic, or hands on, learners want to learn by using their tactile senses.
Most information in a courtroom is in the form of oral testimony, and the auditory learners have a ready source of information. However, pure auditory learners are in the minority. One key to persuasive victory is to convince both the visual and kinesthetic learners. These non-auditory learners, being the majority of "students" are convinced by evidence they can see or touch. Effective demonstrative medical evidence will reach these jurors and give them an understanding to "carry" to the jury room.
"Demonstrative evidence" consists of both real and purely illustrative evidence. The effective preparation and use of demonstrative evidence does not vary whether it is real, illustrative, or whether it is actually admissible into evidence. Research has shown that we obtain up to 90 percent of our knowledge from visual-sensory impressions and that these are the most memorable and lasting lessons:
How jurors store, process and recall evidence
Kevin Thompson, a former broadcaster, attorney, and owner of Evidence Management based in New Orleans has explained that when presenting a visual graphic never just point to it (we strongly adhere to this guidelines). We read the particular text or phrasing of the slide to the jury. This way, we have touched all the various processing methods: they read the text to themselves, we read the text to them, and they see the text and any image on the graphic themselves.
Another interesting method is the "mailbox theory" and anchor/link/payoff design of key teaching graphics. Rodney Jew, President of CDS, a litigation strategy firm located in Palo Alto, California, spoke several times to the American Association for Justice in the late 1990s about the mailbox theory:
"Because we are teachers first, and persuaders second, merely stating our conclusions is not convincing. Mailbox theory is simply that any person processing new evidence will only process the amount of evidence that can fit into their mailbox (the brain) and any excess material that will not fit, will generally be discarded."
Accordingly, since we are trying to persuade with medical evidence in the way of graphics and text, we usually do not set forth more than three, or maximum of four, textual concepts/statements on a graphic or slide.
Mr. Jew advocates using a rhetorical question as to the anchor "question/test/standard," and to list up to 3 points setting forth the same. The anchor/link may be the three points tied to the case evidence. Finally, a third textual slide would be considered the "payoff" graphic which explains the key acts (or failures to act) of the defendant/person which unquestionably violate the anchor/link standards or "rules" of the road.
Some of the teachings of Mr. Jew perfectly mesh with newer trial presentation concepts (mostly relating to liability discussions) outlined in the recent book titled Rules of the Road: A Plaintiff Lawyer's Guide to Proving Liability, as well as concepts on damages described by consultant David Ball, a lecturer for Virginia Trial Lawyers Association. Mr. Ball incorporated some "Rules of the Road" concepts into the core of his current lectures and newest book on damages.
One of Mr. Ball's important mantras is that when a lawyer is planning a trial presentation; remember that in the theater realm, "a play is about what it spends its time talking about." In other words, when we ask the jury to award substantial damages, a major percentage/portion of a trial must directly address medical evidence and damages issues - NOT liability issues. Yes, it takes some time to think about creating and presenting medical evidence, which is why we get started early. We often conduct voluntary mediation and one side benefit is that we force ourselves to look at and create medical evidence not only for a comprehensive mediation presentation, but if settlement fails, we have jumpstarted creation of our medical evidence that may be useful at trial.