When defending personal injury cases, countering the plaintiff’s arguments of harm and causation is often complicated by the need to teach jurors complex case facts, science, and unfamiliar terminology – all while showing grisly exhibits and dealing with a potentially sympathetic jury.
There are plenty of hurdles to clear: How do you help the jury make heads or tails of an MRI image? How do you present an expert medical report in a way that keeps jurors engaged? What approaches will work best to synthesize multiple information sources into a cohesive whole that reinforces your themes? In these situations, a suite of savvy visual strategies is exactly what you need to make a compelling and accessible argument.
Defending Personal Injury with Enhanced Exhibits, Effective Demonstratives
Depending on the circumstances surrounding the injury (e.g., a car accident, defective equipment, a fall at work, etc.), you will have a variety of assets at your disposal. Many of these can provide the basis for, or at least inform, visual exhibits and demonstratives in the courtroom. Examples include:
- Company accident report
- Police report
- Photos or video of the scene (either at the time of the injury, such as by a traffic camera, or afterward as a documentary effort)
- Photos of the bodily injury
- Medical records
- Medical imaging (such as X-rays and MRIs)
- Publications (such as equipment user manuals and employee safety procedures)
- Reports of weather conditions at the time of injury
- Witness and expert testimony
Each of these provides a unique set of opportunities and challenges for the legal team. Following are some proven strategies for maximizing those opportunities.
Strategy #1: Make Medical Imaging Useful for the Jury
Most injuries significant enough to go to trial require elaboration for the jury, and both sides will commonly show medical imaging in the courtroom. Yet, it’s unlikely any of your jurors hold the training needed to properly understand or evaluate such exhibits. And because jurors who don’t understand are left to guess and speculate, it is important to teach them how to appreciate the nuances of medical evidence. They need to be able to assess just what the images are showing – or not showing.
While a radiologist will generally do some enhancement of images in the lab (such as adjusting contrast on an X-ray, or pointing to an abnormality with an arrow), jurors often need more than that. Here are several tactics to consider:
- Establish spatial context for the medical images. Whether you’re dealing with an MRI of a punctured lung or an X-ray of fractured vertebrae, it’s a good idea to help jurors locate the featured structures. Consider starting with an illustration of a human figure in similar proportion to the injured party, and overlay the medical image in the proper location. Once you’ve established this context, you can enlarge the image for further study – much as you might for a subsection of a map (see first and second images of Figure 1).
- Help jurors separate the signal from the noise. Medical imaging can be difficult to read, especially to the untrained eye. On the witness stand, your expert can describe what these images contain – but judiciously augmented visuals will make your expert’s testimony easier to follow, and he/she will be better able to teach jurors the key aspects of the images. These techniques need not be elaborate; for example, outlining structures, darkening or blurring unimportant parts, and using color-coded highlights can simplify the images and draw jurors’ focus (see Figure 1). When further explanation is needed, illustration and animation are effective complements.
- Compare/contrast the injury with other examples to support alternative causation. The image of an injury, even if effectively separated from surrounding visual noise, may not be compelling without a reference point. Having your expert compare the plaintiff’s medical images to strategically selected counterparts can lend credence to your case themes. Through this technique, you may be able to demonstrate that an injury could not have been caused by the events claimed by the other party (e.g., the fracture pattern of a vertebra may indicate an amount or direction of force inconsistent with the plaintiff’s story). In other situations, your expert may be able to use image comparisons to show that the plaintiff’s injury is far older than he/she claims and therefore must have been caused by other events.
Leveraging these visual treatments allows you to take greater advantage of the information encoded in the medical imaging. The jury’s cognitive load will be eased, and jurors will be better equipped to reach your desired conclusions.
Strategy #2: Don’t Ruin the Jurors’ Lunch
As effective as medical imaging can be in the courtroom, its unfamiliar representation of the body makes it somewhat abstract to jurors. Photographic evidence of an injury, on the other hand, can literally be visceral. Plaintiff attorneys may use some of these more graphic images to gain sympathy from the jury.
To mitigate the sympathy factor when showing your own images, graphics can again be employed. Blurring or cropping excess areas is a good start, and photos can give way to illustrations or 3D renderings that are not only less grisly, but potentially more instructive. The idea is to add some level of abstraction (and therefore comfort) while maintaining – or even enhancing – clarity of message, such as in Figure 2 below.
Strategy #3: Provide a Proper Backstory for the Injury
In the service of establishing alternative causation or plaintiff negligence, jurors may need to understand the circumstances that led to the injury. Vehicular accidents might call for the type of computer animation-based accident reconstruction with which many are familiar from courtroom TV dramas, whereas a workplace injury may require a tutorial that illustrates the interaction between employee and machine. Depending on the situation, essential elements may include:
- Vehicular crash: Position, direction, and speed of vehicles; moving violations; driver’s point of view; weather and lighting conditions; precisely when and where a driver began braking; how vehicles and bodies reacted to the impact. Synthesis of police reports, forensic expert reports, eyewitness reports, traffic cameras, photographs, medical reports, etc.
- Injury from machine: Moving machine parts and safety measures put in place by manufacturer; position and/or posture of operator being outside of published rules at time of injury. Synthesis of photos, CAD models, operator’s manuals, expert reports, medical imaging, etc.
- Construction site accident: Map of worksite with positions of worker, machines, structures, and terrain; actions of worker(s) and how elements at the site changed leading up to and causing the accident (such as an excavator moving earth and a worker not seeing a hole in the ground). Synthesis of photos, witness testimony, medical reports, etc.
Strategy #4: Make an Effective Counterfactual Argument
Research increasingly suggests that the outcome of a trial can be influenced by jurors focusing on a “counterfactual” – what didn’t happen in a case. In this instance, the jurors’ opinions are swayed by thinking, “If only the plaintiff had acted this way instead of that.” The defense attorney can gain advantage by controlling the narrative of what didn’t happen.
When one combines this “if only” counterfactual strategy with the widely accepted principle that it is far better to show and tell than to tell alone, it follows that showing what should have been is a very powerful tool indeed. Consider the case of a worker falling from height while neglecting to secure his or her safety harness to an anchor. Establishing negligence can be aided by showing the “if only” to the jury, such as in Figure 3 below. Images like these can also be used as periodic, shorthand reminders that will stick in jurors’ minds during deliberations
Photos, diagrams, 3D models, and other visualization techniques allow jurors to form a comprehensive understanding of the cause and extent of an injury, what happened leading up to the injury, and how alternative actions could have changed the outcome. Case themes, time, and budget are to be considered when making decisions about what path to take when preparing for trial, but the variety of demonstrative options makes their use broadly possible.
The strategies discussed here are based on years of experience and form a well-rounded foundation for easing the challenges of defending personal injury litigation. Visual enhancement and augmentation are highly effective in promoting understanding and retention, but keep in mind that careful design is needed to achieve meaningful learning while avoiding cognitive overload among jurors. Properly used, these techniques can provide an essential advantage over opposing counsel.