Use of Demonstrative Aids in Injury Trials

I always tell people that a big part of what plaintiff injury lawyers do is pure theater. Of course, you need to have a solid grasp of the law and the procedural rules, but you also need some skill as a storyteller. I think this is most important in addressing the issue of damages.

In serious injury cases, this is paramount. The name of the game is driving home the seriousness of the harm to the factfinder. Pretty much every injury lawyer has their own favorite ways to do this, and there are volumes written about proving and demonstrating damages.
Medical damages are easy. They are what the medical bills say they are. The same goes for past lost wages and to some extent, future lost wages. They are easily proven using a witness from the employer, disability records from the physician, and sometimes by using an economist to calculate future lost wages and/or lost earning capacity.

The tough part is proving non-economic damages, namely pain and suffering and damages for permanency. This can require some creativity. Obviously, it’s easy to get the injury victim to testify about the pain and other difficulties caused by the injury, or the difference between their capabilities both before and after the injury. One disadvantage to this is that such testimony may be seen as self-serving.

This is a good time to make use of demonstrative aids. I handled a serious injury case where my client had a severe shoulder injury that resulted in a complete shoulder joint replacement. This poor gentleman ultimately needed to have his complete shoulder replacement revised. All this means is that he had problems with his implant, and had to have a new one put in. I asked him to talk to his doctor, and see if the doctor would save the old replacement joint when he took it out. He got it and gave it to me to save as an exhibit.

Now, this client looked okay when you saw him sitting and moving around. He didn’t seem like someone who had a serious injury. But when you picked up the heavy hunk of metal that replaced his humeral head, you immediately had a new perspective on exactly what this man had gone through. I produced photographs of the implant in discovery and took it with me to the court-ordered settlement conference to show the judge and defense counsel. I don’t know how much of a difference it made, but I do know that the case settled for a significant amount. I didn’t get to try to use it at trial, but I truly believe that any juror that picked this thing up and held it would instinctively reach up and touch their shoulder immediately afterward, just like I did the first time I held it.