Techniques Our Injury Trial Attorneys Use to Present Medical Evidence to Build Cases, Pt.2

This article is part 2 in a series of articles discussing the techniques and strategies our law firm uses when presenting evidence at trial and how to effectively present this evidence so jurors comprehend and accept the evidence presented. In part 1, we examined how jurors absorb new information. In part 2, we'll discuss the overarching importance of evidence and how to get the most effective pieces of evidence admitted at trial.

Visual aids empower the jury

With the help of visual aids, the jury can independently look and absorb what they see. They have the choice of listening to us while they are looking at the visuals, or listening to you and then going back to check what you are saying or compare it with what the visuals say and mean. The effect is that we become not only more interesting, but also much more convincing, because as they lose their total dependence and see our intention to treat them as independent grownups and stimulate their thinking, our statements become their facts, not only ours.

Since much of what we do in the courtroom is reminiscent of the schoolroom, go back to another classroom image with me. Remember the excitement, the sense of anticipation when the teacher said it was time for the movie or the slide tape in class? There was the ritual darken­ing of the room, the moving of equipment, and the rustle of everyone getting comfortable in their seats, ready for the show. That never goes away.

The phrase "a picture tells a thousand words" likely has Chinese origins. "One hundred hearing not equal one seeing" is an expression of Chinese philosopher Chow Ch'ung.

Some evidence we commonly use at trial include:

Medical evidence animations and interactive exhibits

A number of excellent medical illustration/ani­mation companies have devised cutting edge ways to present medical evidence. Now, we can create an animation which dissolves actual MRI or X-ray images right onto a matched (in size and anatomy).

"Day in the Life" Videos

First, have you ever wondered how easily most defense counsel can convince a judge to admit videotape surveillance purporting to show a client's routine activities inconsistent with their injuries? Why then, if there are images of your client show­ing her real difficulty conducting her typical daily activities, can't we show that to the jury, especially if it aids the jury in understanding just what the limitations may be? Without referencing admis­sibility cases across the spectrum, where plaintiffs have offered such videos, one of the key issues is whether counsel is presenting something that will aid the jury, beyond oral testimony.

In a recent case, I called a deposition videographer in the state where my client resided, and outlined that I wanted 15 minutes of video the day before his upcom­ing complicated back surgery, about 15 minutes of footage a day or two after the surgery in his hospital room, 15-30 minutes of footage on the first day my client was released to his home and so on. I outlined the types of questions I wanted the videographer to cover, and you should be careful to require that when the videographer asks a question, that the witness repeat or weave the question back into each answer. Full details of this technique were outlined in a prior VTLA article by Alan Michae­lis.13 Have the videographer forward all of the raw DVD/digital footage to your office where you can have your local preferred video editing company handle the final edit. This is the "inexpensive" method and has worked extremely well when you are planning to conduct mediation, which is more common in North Carolina and other state courts, but of growing interest in Virginia.

Visual evidence comparing experts

In the appropriate case, we create a PowerPoint slide comparing our key medical expert against a defense expert. This will help create additional credibility and trust with our medical expert. 

Admission of real or demonstrative medical evidence at trial

Virginia state evidence rules are mainly determined by case precedent. In federal court, there is no specific rule governing the use or admission of demonstrative or illustrative exhibits. Federal judges have discretion to allow the use of illustrative exhibits pursuant to Rule 611(a), which states:

"The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presen­tation effective for the ascertainment of the truth..."

The Federal Rules of Evidence specifically allows the use of summaries and charts.  The ABA Civil Trial Practice Standards points out the generally favorable view of using demonstrative evidence because it helps juries understand the evi­dence and issues presented at trial:

"Much evidence becomes more comprehensible when presented with visual aids, such as a chart summarizing data, a chro­nology, an enlarged picture of an object, a diagram of a building or a map."
Demonstrative evidence must meet the requirements of all illustrative material used in court:

(1) Must not violate any substantive rule of evidence

(2) Must have relevancy

(3) Must be fair and accurate. Generally, the demonstrative exhibit must also be shown to the other side prior to its use.

Here is an example of an offer of demonstrative medical evidence at trial, for a medical illustration:

Q. Dr., let me show you what we have marked as Plaintiff's Exhibit 1. Did you actually review this prior to your deposition?

A. Yes I did.

Q. Is it reasonably anatomically cor­rect?

A. Yes.

Q: Was it prepared for your review by a medical illustrator?

A: Apparently, yes. In fact, this illustra­tion is quite good.

Q: Will it assist you in helping us under­stand the injuries suffered by John Doe as a result of the automobile crash he was in last January?

A: Yes, I think it will.

Q: Will this drawing also help us under­stand the surgeries you performed?

A: Yes, this drawing will really help me explain my surgical technique.

Q: Your honor, we offer Plaintiff's exhibit 1.

Defense attorney: Your honor, Plaintiff's counsel created that drawing with an illus­trator, and the doctor apparently reviewed it later after it was done. We object to this - it was created by counsel's efforts.

Judge: The objection is overruled. Admitted.

Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia