If You Can Draw It, You Can Use It...

In my experience as a litigation consultant for the past few years, I find that many clients often express concern over the use of demonstrative evidence, graphics, interactive multimedia, or visuals in general at trial. The most common question is whether or not a visual is admissible. Generally, the answer is simple: It depends. While the answer is simple, the meaning of that answer obviously isn't.

Yes, there are many kinds of visuals that are inadmissible and require objection. At WIN Interactive we tend to pride ourselves on not only knowing how to create admissible visuals, but also how to rip apart an opponent's visuals with legal argument. In a borderline demented way we actually find it fun!

Nonetheless, I'm not going to get into all the intricacies involved with creating more complex visuals with admissibility in mind. I want to keep this post simple and offer some of you a very useable rule of thumb. Basically, if you can draw it, you can use it. What I mean by that is even if you can't get a visual marked and placed into evidence, you can still often use that visual as a chalk. In fact, most of the visuals used in trials today come in as chalks. That means they may be shown to the judge and jury for explanatory/educational purposes in conjunction with a witness , but the visual itself often is not considered evidence.

I like to think of the term, "Chalk," literally. If you had a blackboard in court and a piece of chalk, you could draw or have your witness draw elements of a person's testimony in order to keep track and highlight certain portions of it. I worked on one trial in San Antonio, TX where the lead attorney on the case used a blank piece of paper, a felt tipped marker and an ELMO (document camera device) to draw while a witness testified. The effect was that he was teaching the jury while a witness testified. Some courts around the country might not have the patience for this sort of step by step approach, but the majority of judges would be hard pressed to refuse you the use of a blackboard, whiteboard, or large pad of paper on an easel.

Keeping that in mind, when faced with a judge's misplaced concern over a visual image, the go-to argument should be to ask the judge whether you would be permitted to draw the image on a chalkboard and use it as a chalk. Look at the three following examples of images:

This image is how a person might draw a basic house on a chalkboard. Even a person with high artistic ability would probably not fair much better considering the speed with which one might need to draw while on the spot at trial. This is very likely admissible as a chalk.

This next image is the same basic house, but drawn using a computer program. Already there is an improvement because the lines are straight and the background is white. People are more used to white paper print-outs or computers today since not many people (other than maybe schoolteachers) use a blackboard anymore.

In this last image we have clearly skipped a few steps in between, but I just wanted to show you how you could go from a blackboard drawing to a high quality 3D image (not an animation -- that's another story) while still remaining within the same chain of logic. The only difference between these images is the medium used to create them.

If you can use an image that you can crudely draw on an archaic blackboard then why can't you use a clearer, much more educational image to accomplish the same goal? Please keep in mind that what you do with an image is even more important than the image itself, but that is grounds for a much longer discussion and I want to keep this (perhaps overly) simple.

The basic point I'm trying to make is that just because a judge or an attorney may not understand modern technology and graphic design, doesn't mean that the objections are founded. Really, the objection (in most cases) is one made out of fear of the unknown and erring on the side of safety. The best thing an attorney can do is to hand-hold the objector on a logical path that takes him from what he knows to what he doesn't and shows him that the two aren't that far off.

So, again... while it isn't a hard-line rule... if you can draw it (or have someone else draw it for you)... you can use it. Ask yourself these questions about your visual:

1) Is it corroborated by a witnesses' testimony and/or facts already in evidence?

2) Is the drawing a fair and accurate REPRESENTATION (i.e. it doesn't have to be to scale, etc.) of the facts/testimony?

3) Is it educational and helpful to the jury to understand a potentially complex issue?

4) Could I have drawn this on a blackboard (albeit poorly)?

Answering, "Yes," to these questions gets you off to a good start!

Keep that in mind the next time you plug your computer in for trial and someone gets an incredulous look on his/her face...