by BB Sanford and Bernard Alexander
“We learn 10 percent of what we read, 20 percent of what we hear, 30 percent of what we see, 50 percent of what we see and hear, 70 percent of what we discuss, 80 percent of what we experience, and 95 percent of what we teach others.” — William Glasser
- The Importance of Using Visual and Demonstrative Aids.
They say a picture is worth a thousand words. This is especially so at trial. Demonstrative aids have different names: demonstrative evidence, visual aids, exemplars, etc.
Examples of definitions of “visual aids” are:
- “those sensory objects or images which initiate or stimulate and support learning.”
- “any devices which can be used to make the learning experience more real, more accurate and more active.”
- “tools that help to make an issue or lesson clearer or easier to understand and know (pictures, models, charts, maps, videos, slides, real objects etc.).”
The benefits of using a chart or visual aid during examination include organization of questioning, control of the witness, gives the jury a focal point, and adding emphasis.
Using visual aids is one of the most important forms of advocacy at trial, but be wary they do not become and unnecessary crutch or a distraction.
- The Kinds and Types of Demonstratives to Use in Trial.
The types of demonstratives and visuals one can use at trial are virtually endless. You are only limited by your imagination.
Examples of Demonstrative Aids:
- Trial Pad
- Foam Cork Boards, Large Post It Notes, Flip Chart
- Elmo, IPEVO
- Skeleton, Legos, Anything You Can Carry
Examples of Visuals:
- Org Chart
- Charts, Graphs
- Red Flags
- Pictures – people and objects
- Videos (videos and pictures from inspecting office)
- Red tape on a skeleton
Virtually every employment case needs a timeline and an organizational chart. It should be a part of your trial checklist. The timeline should be simple but thorough. If the timeline is too long or complicated, create multiple timelines with “call outs” or separate timelines for more detailed periods of time. The jury is inundated with facts in a short period of time. They need a way to organize it. There are lot of names and employees circulating. Organizational charts keep everything in order. It is an easy reference tool to pull up at multiple points during the trial. For example, if a witness mentions a certain supervisor, briefly pull out the org chart and point to the location of the person on the paper or PowerPoint.
Even though the jury may not realize it, emotion will carry the day. It is important to strategically utilize visual throughout the trial for emphasis, storytelling, and entertainment value (you don’t want the jury to fall asleep!). But whether demonstratives should be high tech or low tech is not necessarily an issue. The jury wants authenticity, no technical glitches or delays, and something easy to comprehend.
Bottom Line: You are only limited by your imagination.
- How to Best Use Demonstratives in Trial.
Thomas M. Melsheimer and Judge Craig Smith in their book, On the Jury Trial: Principles and Practices for Effective Advocacy, offer the following suggestions: 1) hire a professional firm to assist, if you can afford it; 2) identify the key pieces of evidence you think you want to emphasize; 3) use a timeline but don’t overdo it; 4) don’t make visual aids an end to themselves; 5) don’t forget the “old-fashioned” approach; 6) re-sue and emphasize demonstratives through the case and during closing argument; and 7) look for ways to use the other side’s demonstratives.
You can be high-tech and hire an IT professional to help you or you can use paper and pen or a bit of both. There is a way to use demonstrative aids for every budget. Watch your favorite lawyers and take all the classes you can. Then steal what fits your personality and style. Authenticity and clarity win the day. You don’t want to use demonstratives to the point where they are just a “cute” prop and lose all power. If it doesn’t feel comfortable using a certain style or demonstrative, then don’t use it. On the other hand, practicing with certain styles until it feels and looks comfortable can be helpful. It’s a balance.
Re-use key visuals throughout the trial. Pull out your org chart every time a key player is mentioned. Show the timeline when a key date is referenced. Hold up a key performance review in the air for an employee and the employee’s supervisor.
When cross examining a witness, charts can be a helpful organizational tool. But while a PowerPoint may be helpful during an opening statement to keep the organizational flow, a chart on a PowerPoint during a cross examination is usually too restrictive. The chart should be mounted on a board or displayed by a projector, which allow for the marking of the charts. The key is to be able to interact with the charts by physically writing on them.
Rarely do you have direct evidence in an employment discrimination case. And because employers will never admit a discriminatory motive, circumstantial evidence that the plaintiff was treated differently is crucial. I find using a red flag demonstrative helpful. You list all the red flags, the micro-aggressions, the circumstantial evidence, the disparate treatment, the strange looks, the double standards. Maybe one would not rise to the level of discrimination. Maybe one or two would qualify as “petty slights or minor annoyances that often take place at work and that all employees experience.” But when the jury sees all of the warning signs/red flags outlined in a row, it becomes obvious what it is.
Bottom Line: Evaluate the best demonstrative for the phase of trial, mix it up, and repeat.
- Using the Best Person to Display the Demonstrative.
The most obvious person to display, create, or use the demonstrative aid is the speaking attorney. The speaking or questioning attorney will have the most freedom to move around and it is a useful tool to keep the jury’s attention. But do not forget that other witnesses can be used. For the plaintiff, it may be useful to get the plaintiff out of the witness box and recreate an important moment. An expert witness could step into the well and write out key findings or graphics on a flip chat. You could have a fact witness read an important sentence out loud while the jury follows along. No matter who is executing the demonstrative aid, the speaking attorney should always be in ultimate control.
If you are the speaking attorney, another consideration is the amount of effort it will take to execute the demonstrative while speaking or questioning. It may be easier for you to have control of when to press next on your PowerPoint slide. Or maybe it is more efficient to have someone on your team press next. Perhaps another team member writes on the flip chart while you speak an important list. If you have poor handwriting, lightly write the words or draw the diagram on the paper as an outline for when you write or draw in large, permanent marker during trial.
As always, test everything before you do it in front of a jury. Test, don’t guess. Preparation is advocacy, too.
Bottom Line: You (the attorney) should be in control of the visual aids, but don’t be afraid to let others participate.
- When: Finding the Right Timing for your Visual.
You should start thinking of what types of demonstratives will assist trial starting when you file the lawsuit. It may prove helpful to keep a folder of potential metaphors or visuals, adding potential ideas as they come to you throughout the life of the case. Testing various options during depositions gives you practice, especially with an adversarial witness. Testing the visual with a focus group is invaluable.
At trial, visuals may be used virtually at any point: opening statement, witness questioning, and closing argument.
The determination as to whether to allow a demonstrative aid at trial is a matter within the trial court’s discretion. The standard for allowing a demonstrative aid into evidence is:
Demonstrative evidence is admissible only when it is relevant to the issues in the case…. [I]t is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.
Note: Demonstrative aids are not part of the record.
- Strategic Placement of Demonstratives.
Placement of the visual is the final consideration for trial strategy. There are not many options, but it is important to consider each one and varying the position throughout the course of the trial. It is natural that most of the aids will be executed at counsel table or the podium. Most questioning and speaking is conducted at counsel table or the podium. But demonstratives may also be used in the well or at the witness stand with the court’s permission. Consider whether a PowerPoint will be displayed on small individual displays for the jury or one large screen in the middle of the room. Consider if you will be blocking opposing counsel’s table with your large poster board. While you want the jury’s attention on your witness and questioning, you do not want to be rude or completely cut out opposing counsel.
 See Milton v. State, 572 S.W.3d 234, 238 (Tex. Crim. App. 2019).
 Impact of Visual Aids in Enhancing the Learning Process Case Research: District Dera Ghazi Khan. Ghulam Shabiralyani, Khuram Shahzad Hasan, Naqvi Hamad, Nadeem Iqbal
GC University Faisalabad, Punjab Pakistan, Policy and Strategic Planning Unit, Health Department Punjab, Pakistan, Ghazi University Dera Ghazi Khan, Punjab Pakistan. Vol.6, No.19, 2015 pg. 226.
 David Bernick: Beating the Evasive Witness (pg.177-78)- Chapter 7 in Turning Points at Trial, Great Lawyers Share Secrets, Strategies, and Skills by Shane Read.
 On the Jury Trial: Principles and Practices for Effective Advocacy, by: Thomas M. Melsheimer and Judge Craig Smith. Pg 139-49.
 David Bernick: Beating the Evasive Witness (pg.177)- Chapter 7 in Turning Points at Trial, Great Lawyers Share Secrets, Strategies, and Skills by Shane Read.
 See Sw. Hide Co. v. Goldston, 127 F.R.D. 481, 484 (N.D. Tex. 1989).
 Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)
 See Chamberlain v. State, 881 So.2d 1087, 1102 (Fla.2004) (citation and quotation marks omitted).
 Id. at 1102 (citation and quotation marks omitted).
 Stoker v. Stemco, LP, No. 211CV00214JRGRSP, 2013 WL 3786346, at *4 (E.D. Tex. July 17, 2013), aff’d sub nom. Stoker v. Stemco, L.P., 571 Fed. Appx. 326 (5th Cir. 2014).
BB Sanford and Bernard Alexander both represent employees in employment discrimination cases in the U.S. Ms. Sanford is based in Dallas, Texas. Mr. Alexander is based in Los Angeles, California. Both Ms. Sanford and Mr. Alexander currently have the two highest employment discrimination verdicts in the U.S. In 2021, Mr. Alexander won a trial in California against Tesla for $137 Million (note: the case is currently going back to trial for a new trial on the damages). Ms. Sanford recently won a trial in Houston, Texas, in October 2022 for $366 Million. Ms. Sanford and Mr. Alexander have spoken on two panels together in 2022 for the National Employment Lawyers Association: Tesla and Other Large Verdicts and Show and Tell: How to Use Demonstrative Aids in Employment Cases.
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