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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 ehollander@ekhlaw.com

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

18

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
• f pages?
• Goal is to present most effective evidence to jury in

most efficient manner

24

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

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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

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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
• n 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

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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

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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

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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

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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

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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

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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

• ffered 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).

42

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).

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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

• f 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.

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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)

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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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