Demonstrative Aids in the Digital Age

Demonstrative aids have always been a useful tool for litigators to convey information to jurors.  In broad terms, demonstrative evidence is any visual aid or object used to help a witnesses demonstrate oral testimony.  Traditional examples of demonstrative aids include diagrams, photographs, models, or charts.  In many instances, demonstrative aids substitute for what the lawyer or witness would be able to show with his or her own words.  (For example, when describing the scene of an accident to a jury, a witness might use a diagram or map of the intersection where the accident occurred as a demonstrative aid).  Although no Federal Rule of Evidence specifically addresses demonstrative evidence, under Federal Rule of Evidence 611(a), which gives the court discretion over the presentation of evidence, judges have discretion to admit demonstrative evidence for the jury to consider during deliberations if the demonstrative aid is a fair and accurate representation of what it is depicting and the evidence passes the test for relevance.

With the proliferation of electronic trial presentation and trial technology, litigators’ use of digital demonstrative aids has become increasingly essential, as digital demonstrative aids can be more effective in presenting information to the jury in a compelling manner.   Documents, photos, trial graphics, medical illustrations, videos and 3D animations can all be presented in digital form as demonstrative aids.  These exhibits might involve blowing up images, highlighting documents, or enhancing audio to help the jury better understand the information being presented.  Additionally, to summarize voluminous records, an attorney or witness might refer to a summary of documents produced by a forensic computer program that analyzed the records.  In order to effectively incorporate digital demonstrative aids into an electronic trial presentation, litigators should engage with consultants, with expertise in electronic trial presentations, in order to ensure that exhibits are properly prepared (and more likely to be admitted) and that the presentation of digital exhibits is practiced and rehearsed prior to trial.  Below, three cases in which litigators effectively used digital demonstrative aids are summarized.

DiBella v. Hopkins, 407 F. Supp. 2d 537 (S.D.N.Y. 2005)

In this case, a jury rendered a verdict in favor of plaintiff Lou DiBella on his claim that he had been libeled by defendant Bernard Hopkins in statements published in an Internet boxing magazine.  In a motion to modify the awards of costs under 20 U.S.C. § 1920(4), DiBella sought $56,100 for some services rendered by the litigations consulting firm.    The firm’s services included “venue analysis study, construction of controlled juror profile, creation of voir dire questions, jury selection, rhetoric consulting[,] witness preparation, strategic development of demonstrative aids, jury monitoring, hardware design/support, technical support at trial, video/audio conversion.”  According to DiBella, $56,100 of the fee it paid the firm was “attributable to the design and production of demonstrative presentations for trial, scanning of exhibits, computer operation, creation of exhibit database, digitizing of audio and visual recordings, and set-up and break-down of technology used during trial.”  In assessing whether to grant the DiBella these costs, the court noted:

Computers, computer graphics, digitized documents, and other technological advancements have become important tools of the modern-day trial lawyer.  As long as the cost is reasonable and the devices aid in the efficient and effective presentation of evidence, a prevailing party should be allowed to recover their expense.  Here, both sides used computer technology and demonstrative graphics at trial, and the use of these items helped to facilitate the presentation of evidence.

Ultimately, the court concluded that the $56,100 figure overestimated the amount of the fee that went to the electronic trial presentation and production of digital demonstrative aids, but still awarded $10,000.   As this case makes clear, courts recognize the importance of electronic trial presentation and demonstrative aids.

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In re Omeprazole Patent Litig., No. 00 CIV. 4541 BSJ, 2012 WL 5427791 (S.D.N.Y. Nov. 7, 2012)

In this patent litigation, Defendant Lek, the prevailing party, sought costs for, the preparation of digitized models, photographs, and summaries.  Specifically, Lek sought “(1) $558,885.03 for preparation of demonstratives by its litigation support vendor, a company that creates trial graphics; (2) $47,662.50 for expert analysis of trial demonstratives; and (3) $5,597.65 in rental fees for technological equipment for the courtroom.”  In assessing whether to grant the fees, the court noted, “[d]uring the bench trial in this case, Lek’s graphics and models aided in the efficient and effective presentation of complex evidence and were extremely helpful to the Court.”  Ultimately, the court concluded that Lek’ request were unreasonably high, but awarded $225,597.65 for the production of demonstrative aids and the use of technological equipment for the courtroom.

Tookes v. Port Auth. of New York & New Jersey, No. 08-CV-1060-FB-RLM, 2015 WL 5228902, (E.D.N.Y. Sept. 8, 2015)

In this case, Plaintiff Oliver Tookes recovered damages for injuries that occurred when he fell through a grate covering an access pit.  In a motion to modify the award of costs, Tookes sought, among other things, $3,234.68 for the production and presentation of computer-generated illustrations of the injuries to his wrist and leg.   The Port Authority asked the court to withhold these costs “because the illustrations were not necessary for use at trial, because the X-rays which are the original items showing plaintiff’s injuries were available.”  The court noted, however, “§ 1920(4) does not restrict parties to bargain-basement exhibits” and that “the computer-generated illustration of Tookes’s injuries were an effective use of technology in the courtroom, and that the cost of illustrations was not unreasonable.” The court, therefore, granted the full $3,234.68 in costs.

As the above cases make clear, digital demonstrative aids are effective in litigation in many areas of law and have become an essential part of trial presentation.   Additionally, in federal courts, prevailing litigants may be entitled to recover the costs of producing digital demonstrative aids.

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