Ervin A . Gonzalez and Kyle B . Teal No Ideas But in Things : A Practitioner ’ s Look at Demonstrative Evidence 1

T he power of visual stimulation in forming a persuasive argument cannot be understated. Poet Williams Carlos Williams famously wrote, “no ideas but in things....”2 In writing that line, it can be argued that Dr. Williams was simplifying a universal truth that carries over to modern-day courtrooms: The art of conveying ideas is most effectively done by showing, rather than telling, your audience what it should know. In Williams’ specific context, he appealed to readers with imagery that conveyed certain feelings or truths. Similarly, for today’s litigators, the best arguments can be displayed through the use of demonstrative evidence and exhibits. Indeed, studies have shown that visual aids used in conjunction with oral presentations may increase understanding and retention levels by as much as 65 percent.3 It is well known that such “evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved.”4 In today’s technologically savvy society, the influence of visual imagery by use of demonstrative evidence is as powerful and prevalent as ever. The use of this power, however, presents certain obstacles for practitioners. Courts must carefully evaluate issues of admissibility to determine whether demonstrative aids are relevant, are not misleading or confusing, and “constitute an accurate and reasonable reproduction of the object involved . . . .”5 Significantly, trial court judges are afforded broad discretion as to whether demonstrative exhibits should be presented to a jury and admitted into evidence.6 As always, a well-prepared strategy and supported argument for or against the admissibility of such evidence will go far in tipping the court’s discretion toward a favorable result. The trial court’s discretion carries great weight, even on appeal, as the trial judge’s ruling will not be disturbed absent a clear abuse of that discretion.7 First, it is essential to decide whether the use of demonstrative evidence is warranted with regard to satisfying an element of proof, reinforcement, explanation, or illustration of an issue. Next, counsel should decide the medium for presenting the evidence (e.g., videotape or photograph, diagram or drawing, chart or time line, blowup poster, or original-size exhibit). The chosen medium will prompt the appropriate admissibility and foundation analyses. There are also circumstances when the thoroughness and timing of a foundation can play an important role in jury persuasion. All too often, the creation of demonstrative evidence becomes a last-minute decision before trial. Fortunately, companies that specialize in trial graphics can usually accommodate an attorney’s request within hours. However, the presentation of properly developed and effective demonstrative evidence requires meticulous preparation. This practitioner’s guide is intended to assist Florida litigators in some of the trickier aspects of presenting and introducing demonstrative evidence before and during trial, as well as precluding the introduction of such evidence through appropriate objections.