Fury Bailey - Personal Injury - Wrongful Death Attorneys

Basic Technology For Cost Effective Exhibits

By William S. Bailey

and C. Steven Fury

Fury Bailey

710 Tenth Avenue East

P.O. Box 20397

Seattle , WA 98102

LIFE IN THE 21 ST CENTURY

Jurors are much more visually sophisticated now than at any other time in American history. Computers, television and films have taken a predominant role in popular culture. While reading has not yet become a lost art in America , it has been squeezed by the competition in visually based popular entertainment. Paul Connolly, the Director of the Institute for Writing & Thinking has observed:

We have become such a sophisticated culture that we are intolerant of a 400-page book, and want forms of communication that are more efficient and immediate. After 500 years, we may have outgrown Gutenberg.

VISUAL EVIDENCE IS THE MOST EFFECTIVE

Years ago, Marshall McLuhan offered an analysis of why visual information is much more persuasive, which still holds true today:

Most people find it difficult to understand purely verbal concepts. They suspect the ear; they don't trust it. In general, we feel more secure when things are visible, when we can see for ourselves. We admonish children, for instance, to “believe only half of what they see, and nothing of what they hear” . . . We employ visual and spatial metaphors for a great many everyday expressions . . .

Marshal McLuhan and Quinton Fiore, The Medium Is The Massage , 117 (1967).

In addition to the psychological and cultural bias of most jurors in favor of visual evidence, it is a much more efficient means of communication, enhancing the jury's ability to follow what you are saying. Alan Morrill recognized this 26 years ago:

With anything more than a simple set of facts involving an intersection collision, it is probably safe to say that following opening statements through words alone, not one juror has a clear picture in his mind as to how the accident occurred. It is a good bet that about half the jury is completely lost, perhaps some of them have a completely erroneous picture created in the mind's eye.

Alan J. Morrill, Trial Diplomacy , 26 (2d Ed. 1974).

Veteran trial judges have long realized this. Judge Warren Wolfson of Chicago , Illinois is one of many judges who sees visual evidence as a way to assist jurors:

I'm a big believer in blowups. I think everything ought to be blown up, especially photographs . . . [Often] [t]he jury hasn't the slightest idea what the lawyer is talking about. Important documents ought to be blown up, or put on slides and projected. Models of the body, when injuries have to be shown, ought to be brought in. Lawyers can't rely on words only. Words don't have the impact of “share and tell.” Juries will retain best, and believe best, what they see and hear at the same time. Most lawyers just don't know how to do that.

8 Trial Diplomacy Journal , 7 (1985).

TECHNOLOGY AS A TRIAL LAWYER'S TOOL

The force of technology has profoundly reshaped our entire culture and all the institutions within it. In doing so, technology has greatly expanded a trial lawyer's choices for creation of demonstrative evidence. Computers and the rapidly evolving information highway have opened the doors for all manner of visual presentations. Forty-five years ago, Melvin Belli, Sr.'s then state of the art description of a scientific trial lawyer's approach to evidence focused on x-rays, photographs, charts and models. In the 21 st century, these traditional means of demonstrative evidence are still useful, but are now supplemented by the accessibility of computer based visual evidence.

MEDICAL JARGON – A JUROR TURNOFF

One of a lawyer's greatest frustrations is trying to get medical experts to explain things “in lay language.” With many medical experts, the subsequent explanation often is only marginally better than it was the first time around. In any medical-based trial, it is absolutely essential that a jury understand the scientific principles involved. People learn much more readily through their eyes than they do through their ears. The admonition to “Show me, don't tell me” applies with the greatest force to medical concepts. The average juror has not had science courses more sophisticated than high school biology. Whether or not technical terms are used, the lawyer who appeals to the ears and not the eyes of the jury is likely to lose their attention. TOOLS FOR EXHIBIT CREATION

Our office has made increasing use of electronic technology over the last 10 years. In fact, we now believe that electronic technology is absolutely essential for effective presentation of a case at trial. But it neither has to look “high tech” nor cost an arm and a leg. Any lawyer has the capability of becoming familiar with this basic technology and can afford to use it in any case.

WORD PROCESSING PROGRAMS

Most word processing permit insertion of photographs and drawings directly into the text of a legal pleading. This technique can be highly effective not only in trial briefs, but also in demand letters and mediation memoranda.

SCANNER AND PHOTO-EDITING SOFTWARE

The scanner pulls images of photographs, drawings or other graphics into the computer where they can be combined with words or further refined in some other way. Scanned photographs and illustrations can be inserted directly into briefs. A scanner is essential to be able to use a computer to create an exhibit from an image that is not already digital, e.g., from a digital camera or obtained from a website.

Buy a scanner and software such as Photoshop by Adobe that lets you manipulate the images and put on labels. The scanner we bought ten years ago cost about $1,000 and came with the Photoshop program. We replaced it last year with one that scanned at a higher resolution and came equipped with a similar photo manipulation program for $200.

PRESENTATION PROGRAMS

Presentation programs allow the user to create computer images that can either be displayed or turned into hard copy. Our office uses PowerPoint by Microsoft which is part of the Microsoft Office software package. There are other presentation programs with similar capabilities.

We use PowerPoint to create presentation outlines that we call “Bullet charts.” The bullet chart is similar to the key point summary printed in a box with a newspaper or magazine article. Using the scanner, photographic images can be put into these presentations. The program also helps create effective charts of numerical data.

VIDEO IMAGER

Video imagers (also called document cameras) are successors to overhead projectors. A video imager is a video camera mounted on a telescoping arm. It transfers the image of a document, photograph, x-ray or graphic illustration to a television screen.

These devices were widely used in business and medicine long before lawyers found out about them, and they have been well received in court. One local federal judge has stated, “These devices are so helpful in a trial, I can't imagine any lawyer showing up in court without one.”

A special advantage of the video imager is that it obviates the need for having photos or documents enlarged. Lawyers can come into court with exhibits on 8 1/2” x 11” sheets. A zoom focus allows fine details to be enlarged on the screen as they become relevant during oral argument or witness testimony.

A the video imager can display the document either on a television or using a video projector. Although these are expensive items to buy, WSTLA has a video projector that can be rented by members for $50 per day.

DIGITAL CAMERA

A digital Camera permits immediate use of any photograph in an exhibit with labels created quickly on your computer. Combined with a color printer, it is the most efficient possible way to produce photographs for trial exhibits.

LAPTOP COMPUTER

The capabilities of laptop computers are more than adequate for preparation and presentation of the kind of graphics that you can do yourself. Many laptops incorporate versatile tools such as 3D graphics and multimedia CD-ROMS, as well as high resolution video displays. The presence of a laptop computer at trial, equipped with appropriate software, allows the lawyer to create visual images and charts on the spot, as the testimony evolves.

A QUICK GUIDE TO FINDING DEMONSTRATIVE MEDICAL EVIDENCE

There are a number of “usual suspects” when you are looking for demonstrative medical evidence. These include:

•  WSTLA library. WSTLA has models of parts of the human body available for use in personal injury litigation. You can borrow these on an as needed basis.

•  Medical reference books. We maintain the following medical reference books in our library, which have helped us create visual images for our cases:

• Grant's Atlas Of Anatomy , 9 th Ed. Williams & Wilkens

Publishers. 428 East Preston Street , Baltimore , MD 21202 .

•Netter, Atlas Of Human Anatomy , Ciba-Geigy Corporation, 556

Morris Avenue , Summit , NJ 07901 .

• The American Medical Association Encyclopedia Of Medicine ,

Random House, New York .

•  Product catalogues. A number of companies sell anatomical models and charts to the legal profession. These include the following:

•  Lawyers & Judges Publishing Company, P.O. Box 30040-T, Tucson , AZ 85751-0040 (602/323-1500) FAX (800/330-8795). Website:  www.lawyersandjudges.com

•  Anatomical Chart Company, 8221 Kimball Avenue , Skokie , IL 60076-2956 . (800/621-7500) FAX (847/674-0221). Website: http://www.anatomical .com

•  Pro Anatomy, P.O. Box 950 , 211 Atlantic Street , Stamford , CT 06901-0950 (800/242-2449) FAX (203/975-7748).

•  National Library Of Medicine's Search Service – PubMed. An invaluable resource to the attorney is the National Library Of Medicine's website entitled PubMed. It can be reached at the following address: http://www.ncbi.nlm.nih.gov/PubMed/

•  Drug company education materials. The attorney should not overlook the handsomely produced pamphlets that are used as sales tools by the major drug companies. These often include medical illustrations with high production values and explanations of medical terms in easy to understand language.

•  American Medical Association patient education materials. The American Medical Association and other medical societies produce pamphlets for education of the public about common diseases and therapies used to treat those diseases. The American Medical Association may be reached at its main office in Chicago at 773-693-4947.

•  Medical experts personal reference library. Most medical experts have a personal library which will often contain illustrations and photographs of areas of medical concern within their specialty. Any meeting with a medical expert include the question, “Doctor, do you have any illustrations in any of the books in your library which would help me to explain this case to the jury?”

•  Information services librarians. There are a number of librarians with advanced degrees who will help attorneys look for illustrations and other materials which will educate the jury in any given area of medicine. We have used Jeanne B. Clark of Info-Search Northwest for years and highly recommend her. Her address is P.O. Box 841, Bothell, WA 98041. Her phone is (425) 481-8410.

•  Medical training videos. Medical supply houses now maintain videos of most surgical procedures and medical tests, for the purpose of training physicians. These show the various processes in graphic detail.

•  A list of Internet Sources for Medical Illustrations compiled
with the help of Info-Search/NW, Jeanne Clark, P.O. Box 841, Bothell, WA 98041. Phone : (425) 481-8410.

•  Lido.com at www.lido.com Searchable, and alphabetical by anatomy or disease process; large collection of medical images.

•  LifeART Professional Medical Clip Art www.lifeart.com

•  ) HONmedia at www.hon.ch/Media/media.html A unique repository of over 1,950 medical images and videos, pertaining to 1,350 topics and themes compiled by a Swiss non-profit foundation, Health On the Net Foundation; searchable with NLM Medical Subject Headings.

•  Medical Images and Illustrations at www.mic.ki.se.medimages.html A collection compiled by Sweden's only university for medicine.

•  Find Law Medical Images at medpics.findlaw.com/index

•  Medical Legal Art at www.medical-legal.com

•  Medimagery Medical Illustration at www.medimagery.com

•  Medical Illustrator's Home Page at www.medartist.com

•  Gray's Anatomy online at http://www.bartleby.com/107/indexillus.html

•  Injury Forum, a bi-monthly newsletter and website by Richard Seroussi, M. D. We recommend subscribing to the newsletter. The website can be found at http://www.injuryforum.com/

•  Medical Multimedia group patient education materials by Randale Sechrest, M. D. at: http://www.medicalmultimediagroup.com/opectoc.html

•  On-line Patient Education Series from University of Washington Dept of Orthopedics provides a useful discussion of Orthopedic topics at: http://www.orthop.washington.edu/

•  V esalius, an the Internet resource for surgical education at: http://www.vesalius.com/welcome.html

•  Indexed Visuals, a searchable directory of portfolios and stock images at: http://www.indexedvisuals.com/

•  CHC Wausau Hospital Medical Library and Patient Education materials at: http://www.chclibrary.org/

•  Nucleus communications provides links for stock medical illustrations at: www.medicalillustration.com

•  Or just do a www.google.com images search.

CONCLUSION

Nowhere is the need to follow the admonition “Show me, don't tell me” more pronounced than in the area of medical terms and explanations of human physiology. The average juror is not scientifically trained and will quickly lose interest if you do not provide effective visuals to educate them. There are more resources available at low cost to the attorney now than ever before. Obtaining persuasive images and taking full advantage of the capabilities of technology to create and display exhibits should be high on the attorney's list of priorities. These tools are competitive advantages that no trial attorney can afford to be without.

Copyright © 2005 FuryBailey.com - Sitemap