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Presenting a live 90-minute webinar with interactive Q&A
Demonstrative Evidence in Personal Injury
Litigation: Leveraging Technology
During Jury Presentation Navigating Issues of Relevancy, Authentication and Substantial Similarity
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TUESDAY, JANUARY 17, 2017
Justin Blitz, Partner, Schulman Blitz, New York
Eugene K. Hollander, Principal, Law Offices of Eugene K. Hollander, Chicago
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DEMONSTRATIVE EVIDENCE IN PERSONAL INJURY LITIGATION-
POWERFUL AND PERSUASIVE TOOLS FOR JURIES
Eugene K. Hollander
The Law Offices of Eugene K. Hollander
Chicago, Illinois
6
BACKGROUND
• New York Attorney
• Lots of time trying cases
• From what I have learned- research, blogs etc..
• Not a tech expert- what is easiest, trial hard enough
• Walk you through what I do and some helpful info
7
MORE BACKGROUND
• Recently starting implementing technology
• We are not paperless office
• Small firm, 4 lawyers- staff- lots of trials
• Developed a system of breaking down file for trial- implemented scanning for trial
• Before IPad didn’t work effectively, now whole new ball game
8
Role of Demonstrative/Visual Evidence
• No evidentiary value in and of itself
• Most “Convincing and Satisfactory Type of Evidence”
• Juries retention – 15% what they hear, 85% see and hear
9
Why the IPad? What happened to my fathers legal pad?
10
WHY THE IPAD
• Asked by old guys
• Besides for impressing judges
• Started with SJT trials- in NY found it very effective due to time limitations
• Use for all evidence, not just medical but great for medical when pressed for time
11
Types of Demonstrative Evidence
• Video Depositions (substantive evidence)
• Blow Ups
• Organizational Charts
• Timelines
• Damages Summaries
• Animations
• Scale Models
12
Video Depositions as Substantive Evidence
• Harasser
• Supervisor
13
Video Deposition -Expert
• Helpful for body language
14
Blow Ups
“Last Supper”
15
Blow Up Collage of Abuse
16
Medical Illustration
17
Scale Model
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Timeline
19
Animation
20
Impact of Technology on Demonstrative Evidence
• Jurors expect more visuals
• Made easier: • With bar code scanning
• Alternative – overhead projection
• Ipad – Trial Presenter
• Easier to impeach with synched video depositions
21
HARDWARE
• I use I-pad but others out there
• I phone can also be used effectively
• IPad strengths:
• Simple to use interface
• Instant power-on
• Long battery life
• Cheaper than most laptops
• Apple now makes it easy for lawyers
22
Practical Challenges of Using Demonstrative Evidence
• Cost • Medical Illustration
• Animation
• Scale Model
• Best Choice – Model v. Animation?
• Authentication • Medical Illustration – by physician
23
Needs at trial depend on type of case
- Will your opening involve photos?
- Will the evidence at end of case involve thousands of pages?
- Goal is to present most effective evidence to jury in most efficient manner
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USING THE CLOUD
• Why I use dropbox
• Easy to transfer and store
• Compatible with most trial apps
• Other web based storage servers
• Transfer from my server to dropbox
• From dropbox to my trial app
25
Effective Strategies of Using Demonstrative Evidence
• Use throughout trial • Win case during opening • Use during opening, direct, closing
• Low tech and high tech
• Evidence depositions
• Use exhibits during testimony • Physicians’ depositions
• Use imaging studies • Use anatomical models • Stagger deps • Try to keep short
26
HOW THE JURY SEES IT ALL
• PROJECTORS
• Mine_ from brookstone
• InFocus IN5122 –not cheap (4000 lumens)
• Casio DLP Projector )3000 lumens)-can read PowerPoint memory stick- don’t need laptop
• I use mini projector, and portable lightweight white screen and ipad
• Might need a HDMI adaptor, so any projector that accepts hdmi cable
• More sophisticated can use a mifi or tether your iphone
• Or mifi and appletv connected to a projector (then transmit trial exhibits wirelessly from ipad or iphone/I touch
27
AT TRIAL-THE DIFFERENT APPS
• trial pad • If for trial and novice –If more experiences for trials- __ • But at trial- more comfortable, esp. 2 you kid comes up
on screen cant hurt • Exhibit view- good for trial exhibit software, not great if
want to manipulate the exhibits, good for lots of photos, especially. with HD capability from new ipad’s
• Good for text exhibits as well • Can highlight or circle in red or blow up text (jurors
don’t see that, behind the scenes) • Good for cross of experts on record • Exhibit A
28
HOW I USE THE IPAD AT TRIAL
A case of mine through trial pad
• Uses for openings/ For summations
• I use dropbox then file it to trialworks- then can see from jump or trialworks app
• Then for trial move it to trial pad from dropbox folder previously created
• Everything from file, in ipad, scanned in, labeled.
• Subpoena records scanned to dropbox
• Also in trialworks
• From dropbox to trialpad
29
HOW I DO IT
• Labeled appropriately
• Ordered
• Then highlighted, bubbled, etc..
• Rest of file, depositions etc..
30
JURY SELECTION
• If for picking jury- ijuror (be careful of venue for voir dire and fancy ipad)
• Better for breaks you organize thoughts etc..-(and can email encrypted to whomever)
• Has presets to match juror questionnaires set up in advance, different colors
• Or pages for organizing jury thoughts
31
OPENINGS
• GE RECORDS AND PHOTOS INTO EVIDENCE PRIOR
• HAVE DUPLICATES OF ITEMS ALREADY IN TRIAL PAD (Bates Stamping- good app for it) or already scanned subpoena records)
• PERMISSION TO USE DUPLICATES AND IF NOT THEN GET EVIDENCE SCANNED IN
• MORE LIKE BACKGROUND TO YOUR STORY
• GET JURY USE TO IT
• IF HORRIFIC INJURY OR DAMAGE PHOTOS I LIKE TO PUT IT ON SCREEN RIGHT AWAY
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OPENINGS
• Not for long, enough for them to get image in their mind
• As I tell Story I put up photos from prior, family, kids if allowed – try to get all in prior
• If accident I use the photos from scene. Google images have been allowed.
• All in order in trial pad in my folder in key docs in the case titled Opening
33
Openings
• If accident and bad damage photos I use them in opening, images are helping tell the story
• Setting up for future arguments (minimal impact etc..)
• I use property damage photo if extensive – scroll through list
• Police accident report, ACR – careful of what you highlight prior to laying the foundation
34
THE IPAD FOR OPENINGS
• Explain what your expert, surgeon, treater etc..wil say using the records as story is being told.
• Apps for medicine if allowed are great tools to show jury medicine. If not in openings then summations for sure or during expert direct
• Like to end flashing back the pre and post photos from before
35
MEDICINE
• When get to injury portion of opening, good to highlight and blow up important portions of records. Hospital records indicating complaints of pain to body part
• X ray records or MRI reports which show a fracture (ask to be shown for ID purposes if not in evidence)
• If clear on film, great to blow up film, use laser and show injury fracture or tear etc…
36
MEDICINE- ANATOMY EXHIBITS
• 3d4 medical
• essential anatomy
• musclepro
• skeletalpro
• rotate, tilt display, 3d view, can export view and email or save as jpeg, print out etc..
• view to jury can take snapshot and use as exhibit
37
IPAD FOR SUMMATIONS
• REQUIRES TIME TO REDO KEY DOCS AND HIGHLIGHT WHAT NOW IS IMPORTANT
• BRINGS THEME HOME. PHOTOS ARE BACK UP • DISPUTE DEFENDANTS ARGUMENTS WITH RECORDS
ON SCREEN. • TELL JURY WHERE TO LOOK BY SHOWING THEM ON
SCREEN. • TIME TO BLOW UP, HIGHLIGHT, LAZER THE CRAP OUT
OF IT • DISCREPANCIES IN DEPOSITION TESTIMONY SHOULD BE
HIGHLIGHTED- I READ IT OUT LOUD AND JURY CAN FOLLOW ALONG FROM SCREEN
38
SUMMATIONS
• GO THROUGH KEY EVIDENCE FROM SCREEN
• AS TELL STORY, BRING EVIDENCE BACK THEY SAW IN OPENING ONLY THIS TIME HIGHLIGHTED AND BLOWN UP- LET THE EVIDENCE PROVE WHAT YOU ARE SAYING IS TRUE
• IF CAN, GO BACK TO ANATOMY APP, WALK THEM THROUGH IT, GOING BETWEEN APP AND MEDICAL RECORDS CONFIRMING
39
SUMMATIONS
• SOMETIMES A CHART IS HELPFUL • I USE A WORD DOC AND ADD UP EITHER FUTURE
TREATMENT COSTS, YEARS, ECONOMIST OR VOC REHAB OPINIONS. ALL IN SNAPSHOT- EASY TO READ, BIG BLOCK LETTERS LIKE THIS SLIDE
• SOMETIME END SUMMATION WITH JUST PHOTO OR VIDEO OR EBT TRANSCRIPT
• DON’T GO OVERBOARD, KNOW WHEN TO STOP
40
Admissibility Issues
• Models must be built to scale
• Medical illustrations must truly and accurately reflect procedure
• Unique issues
41
CASE LAW
PHOTOGRAPHS
Generally, photographs are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered. People vs.. Wood, 79 N.Y.2d 958, 582 N.Y.S.2d 992 (1992); People vs.. Pobliner, 32 N.Y.2d 356, 345 N.Y.S.2d 482 (1973).
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CASE LAW- PHOTOGRAPHS
• To lay a proper foundation for admissibility, proponents must show that photographs are fair and accurate representations of the persons, places, scenes, or subjects portrayed. Kartychak vs. Conso. Edison of New York, 304 A.D.2d 487, 758 N.Y.S.2d 644 (1st Dept. 2003);
• where a high degree of precision is involved, it may be necessary to describe exactly how the photograph was taken to determine its accuracy. Steiner vs.. City of New York, 203 A.D.2d 450, 610 N.Y.S.2d 328 (2d Dept. 1994). In most cases, however, anyone familiar with the item represented may testify to the accuracy of the photograph; the witness need not know when or how the photograph was taken. Taylor vs.. New York City Transit Authority, 48 N.Y.2d 903, 424 N.Y.S.2d 888 (1979); People vs.. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913 (1974).
•
43
CASE LAW PHOTOS
• PHOTO OF PLAINTIFF
• Philips vs.. Paco Lafayette LLC, et al., 106 A.D.3d 631, 966 N.Y.S.2d 400 (1st Dept. 2013). Summary judgment should have been granted to defendant where photograph of concrete curb that caused accident showed it was an open and obvious condition that was not dangerous.
•
• DiStephano vs.. Ulta Salon, 95 A.D.3d 932, 943 N.Y.S.2d 618 (2d Dept. 2012). Photograph of accident scene showing no dangerous condition was properly admissible after having been identified by plaintiff.
•
• Johnson vs.. Ingalls, 95 A.D.3d 1398, 944 N.Y.S.2d 654 (3rd Dept. 2012). Photographs of personal injury plaintiff taken from her Facebook account showing her attending parties and dancing after the incident were relevant and probative as to her claimed injuries
44
PHOTO-ACCIDENT SCENE
• Vivyan vs.. Ilion Central School District, 94 A.D.3d 1432, 942 N.Y.S.2d 298 (4th Dept. 2012). In a personal injury case in which plaintiff-spectator was hit by a baseball, the court did not abuse its discretion in admitting photographs establishing that there was room behind the screened area for plaintiffs to stand or set up their own lawn chairs.
• Saretsky vs.. 85 Kenmare Realty Corp. et al., 85 A.D.3d 89, 924 N.Y.S.2d 32 (1st Dept. 2011). In slip and fall case, photographic evidence of inadequately marked elevation of walkway was sufficient to establish prima facie case of negligence.
• Matthews vs.. Vlad Restoration, 74 A.D.3d 692, 904 N.Y.S.2d 391 (1st Dept. 2010). In a trip and fall personal injury case, defendants met their prima facie burden entitling them to summary judgment by showing the scaffold was open and obvious. Photographs taken by plaintiff depict two bright horizontal bars, clearly presenting a barrier.
• Rivera vs.. New York City Transit Authority, 22 A.D.3d 554, 802 N.Y.S.2d 247 (2d Dept. 2005). In a personal injury case, trial court erred in admitting photographs that allegedly depicted the defective condition of subway steps where there was no evidence as to when the photographs were taken and the trial took place eight years after the accident. Photographs may be used to show constructive notice where they are taken reasonably close to the time of the accident and testimony discloses that the condition was substantially the same at the time of the accident.
45
DEMONSTRATIVE EVIDENCE
• Demonstrative evidence is a visual aid for use in the courtroom. It is evidence used to explain or illustrate oral testimony. Unlike real evidence, demonstrative evidence is not actual evidence from the event at issue.
• Charts, diagrams, maps, models, videotapes, and simulations or reconstructions are examples of demonstrative evidence. Photographs may also be considered
46
DEMONSTRATIVE EVIDENCE
• To lay a proper foundation for admission of demonstrative evidence, the proponent must show [People vs.. Scarola, 71 N.Y.2d 769, 530 N.Y.S.2d 83 (1988)]:
• The evidence is relevant and material to issues in the case.
• The probative value of the evidence is not substantially outweighed by the danger it will unfairly prejudice the opposing party.
• The evidence must not be misleading.
47
Demonstrative Evidence
• If the trial court perceives that a demonstration or simulation does not closely duplicate the original event, so that confusion or undue influence would result if the evidence was admitted into evidence, exclusion is proper. See, e.g., Kane vs.. Triborough Bridge & Tunnel Authority, 8 A.D.3d 239, 778 N.Y.S.2d 52 (2d Dept. 2004)
48
VIDEOS- CASE LAW
Whether a video or motion picture is admissible is a matter within the sound discretion of the trial court, and depends on the facts and circumstances of each case. Reynolds vs.. Mache Prods. , Inc., 32 A.D.3d 1268, 822 N.Y.S.2d 216 (4th Dept. 2006) revs' on other gds, 8 N.Y.3d 717 (4th Dept. 2006); Read vs.. Ellenville National Bank, 20 A.D.3d 408, 799 N.Y.S.2d 78 (2d Dept. 2005); People vs. Lauer, 275 A.D.2d 655, 713 N.Y.S.2d 322 (1st Dept. 2000
49
TOOLS FOR SUCCESS 4532-a
a graphic, numerical, symbolic, or pictorial representations of medical or diagnostic tests of a party is admissible in evidence without the testimony of the technician who created the evidence, if the proponent satisfies all of the following requirements [CPLR 4532-a (previously, the statute was limited to “x-rays, magnetic resonance images, computer axial tomography, positron emission tomography, electromyograms, sonograms and fetal heart monitor strips”)]:
The following information is inscribed on the representation [CPLR 4532-a (1)]:
• s The name of the injured party.
• s The date on which the information was taken.
• s The identifying number.
• s The name and address of the physician under whose supervision the information was taken.
• • If the exhibit has not been previously examined by opposing counsel, then, at least 10 days before trial, the attorney for the party who intends to offer the graphic, numerical, symbolic, or pictorial representation serves notice on counsel for the party or parties against whom the image is to be offered containing the following [CPLR 4532-a (2)]:
• s The offering party’s intent to offer the proposed exhibit in evidence during trial.
• s That the proposed exhibit is available for inspection at the offering attorney’s office.
• • The notice is accompanied by an affidavit by the supervising physician that [CPLR 4532-a (3)]:
• s Identifies the graphic, numerical, symbolic, or pictorial representation.
• s Attests to the information inscribed on it.
• s States that, if called as a witness in the action, the physician would so testify. 50
OTHER HELPFUL APPS FOR TRIAL LAWYER
• For scanning exhibits or evidence on the go (i.e. court)
• For big jobs have mini scanner __ and laptop
• For smaller jobs can use apps like geniusscan- photo of document, turns to pdf then can email etc..
• Also Jottnot
• Dropbox- can convert from computer to Ipad
• Readdledocs/
• Pages (from readdle can download and save files then can view from pages)
51
resources for the technologically inclined trial lawyer
• Discussions groups
• Google MILO – for mac users
• www.maclitigator.com
• www.macsparky.com
• Book: The IPad at Word by David Sparks
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