TRUCKING - EVIDENCE & DEMONSTRATIVE PRESERVATION

Transcription

1 TRUCKING - EVIDENCE & DEMONSTRATIVE PRESERVATION DANIEL J.T. SCIANO Tinsman & Sciano, Inc McAllister Freeway San Antonio, Texas (210) dsciano@tsslawyers.com State Bar of Texas 24 TH ANNUAL ADVANCED PERSONAL INJURY LAW COURSE July 16-18, 2008 Dallas/Ft. Worth August 6-8, 2008, San Antonio August 27-29, 2008 Houston CHAPTER 4

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3 DANIEL J.T. SCIANO TINSMAN & SCIANO, INC McAllister Freeway San Antonio, Texas Phone: (210) Fax: (210) Toll Free: Daniel J.T. Sciano is vice president and named partner at the Law Offices of Tinsman, & Sciano, Inc. With over 27 years of experience, Daniel has handled a wide array of cases as part of his exclusively litigation practice. He is equally comfortable handling a serious personal injury or wrongful death claim or a complex commercial dispute. Professional Background: Admitted to bar, 1981-Texas; 1986-Wisconsin; U.S. Supreme Court-1992; U.S. Court of Appeals-5th Circuit-1982; U.S. District Courts for the Western (1984), Southern (1994), Eastern (1995), and Northern (1995) Districts of Texas. Education: University of Wisconsin (B.S., summa cum laude, 1978); London School of Economics; St. Mary s University School of Law (J.D., with distinction, 1981); Phi Delta Phi; Member, John M. Harlen Society; Senior Associate Editor, St. Mary s Law Journal, Memberships: San Antonio Bar Association, American Bar Association, State Bar of Texas, State Bar of Wisconsin, Texas Trial Lawyers Association, San Antonio Trial Lawyers Association (Director, ; President, ), American Association for Justice, State Bar of Texas Administration of Rules of Evidence Committee Member, Awards: Listed as one of the Texas Super Lawyers, Plaintiff Personal Injury: Product Liability, 2003, 2004, 2005, 2006, 2007, and 2008 by the publishers of Texas Monthly; and as one of The Best Lawyers in America, Personal Injury and Civil Litigation, 2001, 2002, 2003, 2004, 2005, 2006 and Daniel is Certified as a Civil Trial Advocate by the National Board of Trial Advocacy and is Board Certified in both Personal Injury Law (since 1987) and Civil Trial Law (since 1988) by the Texas Board of Legal Specialization. dsciano@tsslawyers.com

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5 TABLE OF CONTENTS I. INTRODUCTION...1 II. WHAT IS DEMONSTRATIVE EVIDENCE?...1 III. PURPOSE OF EVIDENCE...1 IV. WHY USE IT?...1 V. GET TO IT BEFORE IT S GONE!...2 VI. IT S NO GOOD IF THEY CAN T HEAR IT OR SEE IT...3 VII. PSYCHOLOGICAL COMPONENTS OF THE USE OF DEMONSTRATIVE EVIDENCE...4 VIII. LAWYERS PRESENCE IN THE COURTROOM CAN BE ENHANCED WITH DEMONSTRATIVE EVIDENCE DISPLAYED ON MARKETING BOARDS...4 IX. ADMISSIBILITY OF DEMONSTRATIVE EVIDENCE DISCRETION IS KING...5 X. WHAT IF THAT KEY EVIDENCE IS NOT LET IN? WHAT DO I DO?...5 XI. XII. PLAN THE USE OF YOUR DEMONSTRATIVE EXHIBITS CAREFULLY...6 BE CAREFUL TO WATCH YOUR OPPONENT AND DON T MESS WITH EXHIBITS ALREADY ADMITTED...6 XIII. IF IT S IMPORTANT, MAKE SURE IT IS ADMITTED INTO EVIDENCE...7 XIV. DAMAGES ENHANCED WITH DEMONSTRATIVE EVIDENCE...7 XV. THE COURTS RECOGNIZE CERTAIN DEMONSTRATIVE EVIDENCE AS MORE COMPELLING...7 XVI. DRIVERS HANDBOOKS, THIRD PARTY SAFETY ORGANIZATIONS, COMPANY SAFETY MANUALS, DRIVER TRUCKING LOGS AND OPERATIONAL DOCUMENTS ALL PROVIDE FERTILE SOURCES FOR DEMONSTRATIVE EVIDENCE...9 XVII. CHARTS AND DIAGRAMS DESIGNED TO EMPHASIZE TESTIMONY...11 XVIII. LARGE MAPS OF THE UNITED STATES, A PARTICULAR STATE OR CITY XIX. ENHANCE THE DRAMA OF DEMONSTRATIVE EVIDENCE...11 XX. CONCLUSION...12 TABLE OF AUTHORITIES APPENDIX i

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7 TRUCKING - EVIDENCE & DEMONSTRATIVE PRESERVATION I. INTRODUCTION As the title of this paper assigned suggests, the topic of this paper and my oral presentation relates to both evidence and demonstrative evidence in the context of trucking litigation. Given the length of time allotted for the oral presentation, coupled with the show and tell nature of a topic like demonstrative evidence the oral presentation will highlight real world examples used by the author or others in the context of trucking litigation. The paper attempts to provide a good reference point, including citations to applicable legal and secondary authority for those interested in the trucking litigation field. Trucking cases can present special opportunities, as well as problems, with regard to evidentiary proof, and an effort has been made to provide some available resources to help the practitioner regardless of which side of the docket the lawyer is on. Truck Trailer traffic through the author s home city of San Antonio, Texas, like other major Texas cities, has steadily increased with the advent of NAFTA. Certain major highways travel right through or around the river city that head to or from major United States border towns. Because of its proximity in both time and distance to the United States/Mexico border, thousands and thousands of truck tractor rigs travel through the city every day. Inevitably some of those commercial motor vehicles due to either the negligence of the operator or the motor carrier who employed them, are involved in a catastrophic injury or death. Demonstrative evidence goes with an auto/truck accident trial like bread goes with butter, ham goes with cheese, or picket goes with fence. No lawyer should try any case without the use of some type of demonstrative evidence, but it is particularly vital in truck/auto accident cases. Because of the disparity of weight between even an unloaded truck tractor rig and a typical passenger automobile, property damage and scene photos are a fertile ground for the proverbial picture worth a thousand words. More importantly though, well planned and effective real and demonstrative evidence can provide an opportunity for the trial lawyer presenting evidence to either heighten or hinder their credibility with the fact finder. This paper and my oral presentation has as its primary purpose a discussion of the different types and methods of presenting demonstrative or real evidence, in the context of the truck tractor collision. It also includes a form notice letter with requests for preservation of evidence in the context of trucking litigations (Exhibit A) as well as a partial check list of items to seek out in the context of most truck tractor litigation (Exhibit B) 1 II. WHAT IS DEMONSTRATIVE EVIDENCE? What exactly is demonstrative evidence? The term demonstrative evidence is generically referred to as any and all tangible items used at a trial. Sometimes an item is used for illustrative purposes, to summarize, or explain a particular piece of verbal testimony or other evidence, but is not actually offered or admitted into evidence itself. Some legal scholars call this type of evidence demonstrative aids not demonstrative evidence. Certain jurisdictions actually severely limit the admissibility of all demonstrative evidence to illustrative purposes, or even refuse to recognize such evidence as having any independent evidentiary value. McCormick; 9 A.L.R.2d For the purposes of this article, the phrase demonstrative evidence will be used in the generic sense. III. PURPOSE OF EVIDENCE Whether formally admitted into evidence or not, demonstrative evidence can have a persuasive and compelling affect on a juror s ultimate decision. A good trial lawyer understands the distinction between demonstrative evidence that is formally admitted into evidence and that which is not. A piece of demonstrative evidence that has significant impact in a case that has been expressly denied admission as an exhibit can nevertheless provide powerful support to verbal testimony by being used for illustrative purposes only and still serve its purpose under that form. A juror, in a long trial in particular, will remember the facts better if any of the evidence, including damages evidence, is presented verbally and visually rather than verbally alone. The best demonstrative evidence, in my opinion, speaks AFTER it is admitted into evidence or long after it has been discussed or presented in court, when it makes it to the jury room where it counts most. In one sense, demonstrative evidence is a piece of evidence that fills some evidentiary void, either as part of your case in chief, or to rebut something raised by your opponent. Demonstrative evidence can come in many shapes and forms. (See Appendix A, attached hereto). Whether it is an object or article, it is evidence that speaks for itself, testifying after its admission or display to the finder of fact or the applier of the law. IV. WHY USE IT? Why use demonstrative evidence? Demonstrative evidence helps describe or explain concepts or ideas that are difficult, or, from a practical standpoint, are all but impossible to verbalize. Not only is demonstrative evidence important from an evidentiary standpoint but it is critical to maintain interest. Interested jurors listen. Interested jurors ultimately develop a personal stake in the trial as the

8 ultimate fact finder and with the benefit of effective demonstrative evidence are provided a powerful tool in the deliberation room itself to persuade the other members of the panel what the answers to the ultimate fact questions of fact should be. In my opinion, when jurors are interested, they listen in a way that is focused. This allows you to drop memory anchors for your jurors to recall when they are in a deliberation room. The ability to create interest in a particular type of demonstrative evidence is in part certainly dependent upon the quality or nature of the demonstrative evidence. Interest in evidence presented to jurors permeates just as importantly and maybe more effectively, from an interested, concerned, and passionate advocate. The timing, color choice, form, and order of evidence is often heavily controlled by the trial lawyer who seeks propounding it. The lawyer who sets the stage first on the way certain evidence is offered can literally change the focus and effectiveness of the evidence presented. If you as an advocate are engaging and thoroughly interested in the manner in which demonstrative evidence is presented, these conditions are truly contagious. From a legal standpoint, using demonstrative or real evidence in your case is for the purpose of establishing or making clear a substantive point. But this type of evidence does much more -- it provides emphasis to a point. It adds exclamation points to your evidence. If done right, it makes it more memorable. In essence, it makes that evidence more persuasive. Effective demonstrative evidence creates suspense, creates and holds the jurors attention, and focuses that attention to where YOU want their attention and focus to be. Importantly, the psychosocial people tell us that persons REMEMBER what they see longer than what they are told. When considering issues of primacy and recency, it is important to consider how demonstrative evidence will help jurors remember important facts. Demonstrative evidence also should wake up the audience -- whether it is your judge, jury, or both. Further, demonstrative evidence takes away the tedium that is often part of the trial process. In today s society, in my opinion, jurors expect to be entertained in the trial process and the lawyer that effectively uses demonstrative evidence adds credibility to him/herself. In this author s opinion, if you not only put on your evidence, but make the process less boring or make it downright exciting, you are perceived as more persuasive by both the court and the jury. V. GET TO IT BEFORE IT S GONE! Too often critical evidence that goes to the heart of a damage component of a case is lost forever due to the failure to preserve it. Emergency or 911 call tapes that are recorded over after a few days need to be obtained promptly. Outtakes by news organizations that film at the scene for the evening news place their 2 film or digital images back in rotation. They film many minutes to get that 5 second image. These outtakes may provide the sole means of obtaining points of rest of vehicles, the existence of other witnesses at the scene, or physical conditions at the time or the day of the collision simply missed by the investigative officer. Photographs taken by police, child protective organizations, or hospitals themselves oftentimes are gone because they were never sought to be retrieved until it was too late. Sometimes they were destroyed in the ordinary course of business because of lack of adequate storage space. Sometimes they exist years later, but no one bothers to ask for them or seek them out. Either way, getting it early increases the chances of making sure it is obtained. In the context of a trucking accident that has resulted in serious injury or death, especially with regard to national trucking companies with significant self insured retention, on-scene investigation by designated corporate safety representatives, knowledgeable claims handling consultants with vast trucking experience, specially retained accident reconstruction experts, and legal counsel experienced in trucking litigation often occurs within hours. Rather than running the risk of lost evidence and waiting even a few days after a serious injury or fatality, most large national trucking companies and insurance carriers have teams of specialists prepared to arrive at the scene and have set out designated documents that are automatically retained. The level of investigation performed by local investigating police officers, sheriff s departments, or the Department of Public Safety is often dependent upon the background and experience they have. The weather conditions at the accident site can also play a major factor in the depth and specificity of the investigation performed. Sometimes a wet weather scene or heavy traffic at the site of the accident results in a determination being made too quickly regarding the cause or causes of how the collision occurred or how the collision could have been avoided. Many times due to the severity of the collision forces that often occur in a truck tractor collision, the passenger vehicle operators or occupants are killed or are unable to provide details of what happened prior to the officer completing the standard police report. The truck driver s statements of what happened in those situations where there is a lack of credible independent eyewitness testimony can result in wrongfully placing sole responsibility for the wreck on the passenger vehicle operator. Other times, the rush to judgment can cut the other way when the collision involves a local pickup or passenger vehicle operator who is killed in a rural town and the trucking company and operator of the truck tractor rig are from out of state. The level of cooperation, or deliberate lack of it, can also play a major factor in what is known to the investigating officer. The truck trailer rig might

9 have sophisticated global positioning system data, or onboard communication systems audible or textual - that might completely contradict or corroborate what the truck driver was or was not doing. Similarly, Electronic Computer Monitors (ECM s) that provide detailed information of what the power unit was or was not doing immediately prior to the impact is only obtainable from authorized original equipment manufacturers with the proprietary software capable of reading it. On some commercial and passenger vehicles, failing to preserve and obtain the electronic data from ECM s before the vehicles are restarted, or worse yet before the vehicles are parted out for salvage or resold, can have a potentially adverse affect in litigation. Sometimes this electronic data provides additional corroborative proof of other direct or circumstantial evidence and in some cases it can completely contradict unreliable alleged eyewitness testimony. It is for this reason that reasonable attempts to obtain and preserve this electronic data should be taken if at all possible. Sometimes this is NOT possible or practical due to the time in which legal counsel is retained. Other times because of the rush to judgment referenced above, an investigative report may be incomplete or completely inaccurate and retained litigation counsel may preliminarily and wrongfully conclude that his client is at fault and is the major cause of the wreck and therefore the case will not financially justify retention of a qualified accident reconstructionist. Despite this, reasonable efforts to preserve physical evidence in its original state that might otherwise be lost should take place if reasonably possible. Because of the fact a truck tractor and trailer combination involved in a wreck are for hire vehicles that are losing money when they are down for repairs, market forces can conflict with the importance of preserving key physical evidence. As an attorney handling trucking cases for over 27 years, there are also situations where potential contradictory physical evidence, electronic or otherwise, appears to have been deliberately NOT preserved by unscrupulous parties because of the adverse effect such evidence might have in criminal or civil proceedings. The dramatic effect that demonstrative evidence can bring to a case should also not be underestimated. Demonstrative evidence often aids, clarifies or assists the trier of fact. It is the kind of evidence that tells the story of your case, or at least some important part of it. Whether it is the liability portion of the case, causation, or damages, demonstrative evidence has a critical place in every trial. You know good demonstrative evidence when you see it. It speaks about the aspects of liability, causation, or damages or a litany of other issues. Those who attend this seminar already know that we tend to believe and remember best that which we see in addition to what is told to us. The phrase a picture is 3 worth a thousand words is why it is vitally important to analyze how demonstrative evidence can portray our client s case for us regardless of what side you represent. Demonstrative evidence should not be limited to your case in chief but should be used in all phases of the trial, including voir dire, and opening statement if possible. Also, never forget that at mediation or settlement conferences the rules of evidence do not apply. Demonstrative evidence can be used effectively at this stage regardless of ultimate admissibility. In trucking litigation the truck driver s qualification file and personnel file can contain valuable evidence to establish an operator WAS or WAS NOT qualified to operate a commercial motor vehicle. Both should be preserved immediately after a wreck. The driver s logs (if applicable) that are in the possession of the truck driver (if physically possible) in addition to those maintained by the motor carrier should be preserved and obtained. These documents are in multiple original and can often be used to establish or refute contentions of spoliation. Operational records including bills of lading, dispatch records, delivery receipts, fuel purchase records, com data records, weight tickets, and any proof of toll booth payment should be preserved. This includes not only those applicable to the last trip in question but any records that might corroborate habitual compliance or non-compliance with state or federal motor carrier regulatory requirements. VI. IT S NO GOOD IF THEY CAN T HEAR IT OR SEE IT It goes without saying that visual demonstrative evidence should be able to be seen and auditory demonstrative evidence needs to be heard by your jury audience. An awkward seating position, blocked view of a witness or a juror, or a blind spot are all things that need to be scouted out in advance and eliminated if possible before trial begins. A smooth presentation is often helpful in increasing the chances that the demonstrative evidence will be received favorably by a judge or jury. On the other hand, I have watched first hand a trial master as he deliberately failed to properly lay a foundational predicate to allow admission of the key smoking gun document. After about the third witness was unable to provide the necessary foundation to prove up the document, the opposing counsel was grinning ear to ear each time his objections were properly sustained. He was winning right? Why shouldn t he be smiling? In reality, the crafty trial lawyer moaned as the judge sustained the technically proper objections and sadly he proclaimed how critical this evidence was to his case and how he just had to get it in. He would, at the same time, shake his head in disbelief after each ruling denying admission. He would look surprised that this key

10 documentary evidence was being denied admission and not properly displayed to the jury. By now, the jurors were at the edge of their seats wanting to see what all the fuss was about with regard to this exhibit that was causing all this ruckus. The older, wiser, crafty, trial lawyer said under his breath to me after the third witness was unable to meet the evidentiary foundation necessary for admission, NOW WE DO IT THE RIGHT WAY THEY RE READY! The next witness, number 4, proved up the document, as he was always planned to do, and each juror couldn t wait to see what this document was that caused all the commotion. Sometimes the wrong way IS the right way to prove something up. In my opinion, however, a trial lawyer has to be careful to not play what some call Columbo too often. If a judge repeatedly keeps out your evidence, the jury may very well actually believe you are in fact unskilled, incapable of offering exhibits into evidence, or, worse yet, incompetent. If you consistently demonstrate your inability to get your evidence proffered properly, and waste the jury s time, they may very well disregard you as the leader or authority in the court room, which has its own detrimental side effects. VII. PSYCHOLOGICAL COMPONENTS OF THE USE OF DEMONSTRATIVE EVIDENCE The serial position effect is the phenomenon, in which the first and last things in a series are learned more quickly than the middle. Therefore, although subject to exception, most good trial lawyers will tell you the best witnesses should go on first and last, because, practically, the jurors will likely forget much of what occurs between. The timing and sequence of demonstrative evidence used can enhance this phenomenon or help jurors remember what happened in the middle. Those present at this seminar obviously already know that we are better visual learners than auditory learners. Demonstrative evidence helps us allow the jurors to be better learners of our important facts. We also know that the attention span narrows under stress, fatigue, and boredom. Demonstrative evidence helps take away the boredom that a trial based on words alone creates. We also know from the social scientists that, if a person is described as warm, a whole cluster of positive traits will be ascribed to that person simply because of that one positive trait. Demonstrative evidence can help you visually establish that trait with positive photographs depicting the person in that light coupled with complimentary verbal testimony. Jurors also have a real need to resolve conflict. The longer the trial, the greater the need of jurors to resolve this feeling of conflict. Demonstrative evidence can make the resolution of conflict simpler by 4 summarizing events or facts in a particular summary board or time line that makes the decision process easier. Good demonstrative evidence helps jurors get to your side of the conflict earlier. Jurors will then use cognitive dissonance to hear what they want to hear and disregard the conflicting evidence that does not comport with how they have resolved the conflict. VIII. LAWYERS PRESENCE IN THE COURTROOM CAN BE ENHANCED WITH DEMONSTRATIVE EVIDENCE DISPLAYED ON MARKETING BOARDS My mentor told me years ago that jurors look for the lawyer with presence in the court room. Good demonstrative evidence can help a lawyer project a presence or aura in the courtroom. Jurors always make decisions on who they trust in the courtroom. If the jurors like you, this factor has a subtle but also a very powerful effect on your persuasiveness. They are also asking themselves Can I trust him/her to tell me the truth or is he/she just another one of those slick lawyers I have read about or seen on TV or in the movies? If you are sincere and honest to the jury, these character traits go a long way in allowing them to trust you. I believe most jurors do, in fact, want to satisfy their intellectual search for the truth. Being sincere and honest in what you say helps them gravitate to your thoughts about what the truth is in this particular case. If you are not only competent, but efficient in the way you present your case by the use of helpful and effective demonstrative evidence, jurors, in my opinion, give you heightened stature in a case. I have watched jurors shake their heads at lawyers who habitually stammered or bumbled around trying to find something that was admitted into evidence or trying to find something they want to admit into evidence. Shuffling frantically and repeatedly to find something, makes you look like the disorganized person you probably are. I try to put the important stuff somewhere I can get to it at a moments notice and then let it testify throughout the trial. I do this by the use of display or marketing boards in combination with Velcro backed exhibits attached to solid foam core. These boards can be used in combination with key phrases and key demonstrative exhibits that are habitually displayed to the trier of fact. This ensures that the theme of your case is close at hand and that you look confident and organized. I have never failed to use such a board or boards and have never had a jury not complement me on how it helped them reach their decision and made my side look prepared and right. Additionally, these display boards, in my opinion, help you with your own confidence in knowing that you have thought out your trial themes and have them available to testify at a moments notice with the key exhibits telling your liability and damages

11 story for all to see. They also allow you to change what is important at any given time and display it like a billboard in front of your target audience. If you are shaky or unsure of your case, it translates almost universally, into lack of confidence and a corresponding disbelief in your client s case. Display or marketing boards can be self made 3/4 inch 4 X 8 foot plywood board cut into two 2 x 8 sheets joined with door hinges, and affixed with inexpensive carpet glued to them. Alternatively and preferably, they can be more expensive but portable and lightweight professional display boards that can be transported in their own carrying case. (See and similar websites). The latter are not only relatively lighter but also their professional look adds to your proficiency. Correspondingly, that look adds to your credibility. They can be easily set up and moved if a trial judge requires you to close them during your opponent s side of the case as some judges have required of me. They represent one of the important tools a trial lawyer should have if he/she tries numerous cases. In my opinion, they pay for themselves the first time you use them. IX. ADMISSIBILITY OF DEMONSTRATIVE EVIDENCE DISCRETION IS KING Demonstrative evidence admissibility, like most evidence, is subject to the wide latitude of the trial court s discretion. Every trial lawyer knows that, with regard to what is displayed to the jury or admitted into evidence, it is mostly controlled by the discretion of the trial judge. The Texas Supreme court has repeatedly noted that whether evidence is admitted or excluded is within the trial court s discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex 1995). Although there are special rules with regard to out-of-court experiments or reenactments, the latitude of a trial judge to admit or deny demonstrative evidence is broad. The extent of the trial judge s power to admit or exclude demonstrative evidence is exercised daily by our trial court judiciary. In reality, this is almost unbridled discretion, when coupled with the harmless error rule on appeal. To obtain a reversal based on error in admission of evidence, a losing party must show more than the ruling was in error. In addition, you must show a substantial right was affected, and the error probably caused the rendition of an improper verdict Tex.R.Evid. 103(a); Tex.R.App.P. 44.1(a). What is more, the analysis of determining whether the error probably resulted in an improper judgment requires a review of the entire record. Boothe v. Hausler, 766 S.W.2d 788 (Tex. 1989); City of Brownsville, 897 S.W.2d at 754. Although the admission or exclusion of certain types of demonstrative evidence can in fact be the basis for reversal of a case, if a party can show 5 harm, it is especially daunting to do so in a long trial where the demonstrative exhibit will likely be deemed cumulative of verbal testimony on the subject. Reversible error does not usually occur in connection with evidentiary rulings unless the whole case turns on the particular evidence admitted or excluded. In re K.M.B., 91 S.W3d 18 (Tex.App. Fort Worth, 2002); Garza v Guerrero, 993 S.W.2d 137, 140 (Tex.App. San Antonio 1999, no pet). Just like the initial decision to admit or exclude evidence is subject to wide latitude of the particular trial court s discretion, ultimately the harmless error rule analysis is similarly entrusted to the sound discretion of the reviewing court. Lorusso v. Member Mutual Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980). The important message sought to be conveyed here is live to fight another day and don t burn your discretionary bridges. Although it is easier said than done, in the heat of the litigation battle, if a judge makes erroneous rulings, don t ever forget that he or she is always the judge. A judge who is angry with you is not likely to give you favorable broad discretionary evidentiary rulings, in either admission or exclusion of evidence. One trial lawyer who I tried numerous cases with used to bet me that a particular piece of evidence would ultimately get in even if it was a long shot in a lengthy trial. Sometimes he would offer the same exhibit 10 or more separate times, offering it for another purpose, before it would ultimately make it through. He always proved to be right, despite admonishments from the court that no matter how hard you try, I m not letting that evidence in. Be persistent and oftentimes you will be rewarded, hopefully not with an order of contempt. X. WHAT IF THAT KEY EVIDENCE IS NOT LET IN? WHAT DO I DO? What if the judge just got it wrong and improperly sustained an objection and did not let you get your key demonstrative or real evidence go to the jury? To preserve error in the exclusion of evidence you must take key steps as a trial lawyer. First, you must attempt to introduce the evidence. Secondly, if an objection is lodged, specify the purpose for which the evidence is offered and the reasons the evidence is admissible. Third, obtain a ruling. Finally, number four, if the judge rules the evidence is inadmissible, make a record, through a bill of exceptions, of the precise evidence you desired to admit. Richards v Commission for Lawyer Discipline, 35 S.W.3d 243, 252 (Tex App.-Houston[14 th Dist.] 2000, no pet.). To complain on appeal that your trial judge erroneously excluded evidence, you must follow these steps including making a proper bill of exceptions. Malone v Foster, 956 S.W.2d 573, 577 (Tex.App.-Dallas 1997) aff d 977 S.W.2d 562 (Tex. 1998). By failing to make a proper bill of exceptions, you will be found to have

12 waived any error in the exclusion of the alleged key evidence. XI. PLAN THE USE OF YOUR DEMONSTRATIVE EXHIBITS CAREFULLY If you fail to carefully preplan demonstrative evidence, it may actually be used against you. Time and time again, demonstrative evidence sought to be used to portray a certain fact or scenario can backfire despite the best laid plans of competent counsel. As an example, the lawyer who built a mock-up window to show the insured committed suicide. The theory was it was impossible to fall out the window accidentally without also knocking over a plant that was on the window sill. When the lawyer was attempting to show how it was impossible, he accidentally slipped and fell through the mock-up window without the plant falling or breaking. Although a mistrial was granted, the case settled thereafter. In another example, a lawyer constructed an elevator as part of the demonstrative means of explaining how an accident happened. The defense contended the elevator was overloaded. The plaintiffs contended only a certain number of workers could reasonably fit. The jurors showed that 12 could fit rather easily and then they asked the court and lawyer if they could see if they could jam some more in from the audience. If your jurors themselves prove your theory doesn t fly, you have not only lost credibility, but probably lost the entire case as well. In one case I was involved in, the lawyer had the entire interior apartment unit lined out and taped off in the courtroom. Further, he had constructed out of cardboard, lifesize appliances and other objects in the kitchen to show how something was not possible. Over strenuous objection, the defendant was allowed to use the mocked up room on direct, despite the fact that it had never been disclosed in pretrial discovery. Cross examination immediately thereafter went so badly for the defense that the entire set disappeared the next day and was never seen again. The trial judge said later in the case, what was all that fuss about that mock-up, after it was over, it turned out to be your best exhibit. Although the court was probably right, you never really know until it s too late. XII. BE CAREFUL TO WATCH YOUR OPPONENT AND DON T MESS WITH EXHIBITS ALREADY ADMITTED As the above examples show, demonstrative evidence may actually hinder or defeat your case as well as help win it. You also need to be vigilant once the evidence is in evidence. In Texas Dept. of Transp. v. Fontenot, 151 S.W.3d 753 (Tex.App.- Beaumont, 2004) the record reflected the trial judge altered a police report after it had been exhibited to the 6 jury and admitted into evidence. It is vitally important to keep an eye on your opponent, too despite his or her perceived professionalism. In one medical malpractice case, both parties used a plastic model arm as demonstrative evidence to assist the jury in its fact finding role. Perez v. Bagous, 833 S.W. 2d 671 (Tex.App.-Corpus Christi, 1992). The patient had filed a medical malpractice action after he allegedly suffered nerve damage after an injection into his arm. The model had not yet been formally admitted into evidence. During a scheduled jury recess, the appellee doctor, allegedly at his attorney s direction, removed a needle (that had already been admitted into evidence) from its sheath and inserted it into the model arm exactly where the appellant testified he received his injection. The crafty trial lawyer allegedly did not tell either the court or the appellant he had done this. The appellant, who had allegedly not realized that the model arm that had been used throughout the trial now had an exhibit needle in it, failed to inspect the model and allowed the model arm into evidence without objection. During closing arguments, the attorney who inserted the needle referred to the model arm and to the fact that the needle had been inserted in it and asked the jury to make its own physical examination and confirm the needle did not strike the nerve that allegedly gave rise to the injuries. Similarly, additional counsel for the doctor, during his portion of the closing argument also referred to the model arm and the fact that the needle had been inserted. After the jury retired to deliberate, all the exhibits, including the model arm were delivered to the jury room. Thereafter, the jury recessed for the day and when they returned the following morning, the exhibits were withheld temporarily. Only at this time did the appellant request the court to withdraw the model because of the needle, contending the exhibit was the result of an out-of-court experiment. He further requested that the jury not be allowed to consider the exhibit for any purpose whatsoever. Although there was a dispute as to whether or not the attorney who inserted the needle told the court reporter what he had done, there really was no dispute he had not told either the court or the appellant he had done this. The trial court ultimately concluded that the appellee s lawyer waived error by failing to make a request or motion at the time the exhibits were tendered to the jury and the appellate court agreed. Perez v. Bagous, 833 S.W. 2d 671 (Tex.App.-Corpus Christi, 1992). This is a good example of why it s important to thoroughly examine any demonstrative exhibit offered into evidence, even when it appears to be evidence you really want admitted, because of potential problems just as described above. Don t be afraid to take your time if there is any doubt. This same principle applies to exhibits that have already been admitted before they are tendered to the Jury Room. Rule 281 is mandatory

13 and the trial court is required to send all exhibits admitted into evidence into the jury room during deliberations of the jury. First Employees Insurance Company v Skinner, 646 S.W.2d 170, 172 (Tex, 1983). XIII. IF IT S IMPORTANT, MAKE SURE IT IS ADMITTED INTO EVIDENCE The evidentiary value of an object displayed to the jury never makes it into the jury room unless it is actually admitted into evidence. This double board certified personal injury trial and civil trial lawyer actually had the joy of serving on a jury in Bexar county. The jury was required to render a verdict and I witnessed firsthand the important distinction between evidence used for illustrative purposes and evidence properly admitted. A large diagram of the scene was used extensively throughout the trial but neither party offered it into evidence. After being placed in the jury room, and choosing the presiding juror, the evidence admitted was being reviewed by the entire jury panel when one of the jurors said, Where is that diagram? After a few minutes, it became obvious to everyone that it wasn t there. The other jurors absolutely wanted that exhibit for the benefit of the deliberative process. They went so far as to have the presiding juror make a specific written request for it to be provided to the jury room to be considered since it had been referred to throughout the trial. The court appropriately advised the jury the physical exhibit would not be provided and that the jurors were to rely on their recollection of the testimony. Two jurors actually got into a heated debate about what the diagram did or did not show based on their recollections. Further, a number of the jurors commented negatively about the fact the lawyers didn t provide this key evidence for them to reach their verdict on. They also commented negatively about the fact a number of the scene photographs were black and white photostatic copies rather than color reprints or color copies. The poor quality demonstrative evidence was actually used sarcastically by one juror as a basis to question the validity of that particular litigant s entire claim. These actions brought home how jurors can and do react positively or negatively to demonstrative evidence offered or that which is failed to be offered. This is a personal lesson this lawyer has never forgotten. XIV. DAMAGES ENHANCED WITH DEMONSTRATIVE EVIDENCE In a case involving burn injuries sustained in a collision, one might hear verbal testimony about the burn treatment process alone, but the difference between verbal testimony (in conjunction with a few color photographs), is something completely different from actually having the fact finder observe short segments of the entire burn treatment during the 7 hospital stay documented videographically. It is the sight and sound of burn care that makes it the painful and emotionally draining injury it is. The only real way to understand the nature and extent of burn injuries is to follow it from the acute stage through the emergent, and then through the healing stage to walk in the shoes of the injured victim. This includes documenting the PT that goes with stretching graphed skin. Day in the life film is a critical part of conveying the trauma associated with the treatment necessitated by the injury the defendant caused. This is especially true with regard to children and brain injured victims who may be unable to speak for themselves about the trauma, either due to age or physical or mental infirmity. Documenting the physical pain or mental suffering videographically, if there is a way to do it, is a critical part of the plaintiff counsel s job. Regardless of its actual admissibility into evidence, the mere fact that the ultimate admissibility of day in the life footage is subject to the wide discretion of a trial judge can help resolve a claim because of the risk that a portion or all of it may in fact come in. It is especially helpful in persuading cold-hearted claims handlers that see the same written descriptions over and over again. In this author s opinion, the documented treatment preserved by sight and sound is often the best evidence of the physical or mental trauma suffered. Regardless of whether your client s injuries were actually videoed or photographed, there are numerous sources to obtain similar surgical procedures from medical schools or third party vendors. Documenting the nature and extent of the injuries photographically and by videotape should be a matter of course in any auto/truck accident case, as has been discussed above. There are a number of good quality third party vendors that can create demonstrative evidence from the medical records themselves. Additionally, they can supplement, enhance or combine x-rays, CTs and photographs or video to provide, on one exhibit, the whole story of an injured victim s injuries or damages. This author has used or observed the work of the following vendors who provide excellent resources in this regard: MediVisuals ( The Doe Report ( and The Palette Group ( XV. THE COURTS RECOGNIZE CERTAIN DEMONSTRATIVE EVIDENCE AS MORE COMPELLING The greater influence of certain types of demonstrative evidence has been discussed by the courts. In Lopez v. Foremost Paving, Inc., 796 S.W.2d 473 (Tex.App.-San Antonio, 1990) the court noted:

14 The powerful effect of videotape on jurors has been recognized. See Misko, Videotape for Litigation, 26 So.TEX.L.J. 485 (1985). Pictures can "transmit a message far better than any human witness." See Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla.1982). The average person learns more effectively by seeing rather than hearing. Misko at 485. Videotape makes a more lasting and intense impression on jurors than other forms of proof: [It] is a convincing means of demonstrative evidence because we live in the age of television. There is something about television and the videotape that has an unspoken credibility about it. They start the day in the morning watching "Good Morning, America" and wind up at night with the 11:00 news, if not something worse, and they are accustomed to it, and they accept it... Witke, Higgins and Babcock, "Video Tape is Worth a Thousand Words": Use of Demonstrative Evidence in the Defense of a Product Liability Case, 50 Ins.Counsel J. 94, 97 (1983). A Missouri court has observed that "caution is required in admitting motion pictures because, while the danger of false perspective or of intentional fabrication exists as to both still and motion pictures, these dangers are greater in the motion picture." Cryts v. Ford Motor Co., 571 S.W.2d 683, 691 (Mo.App.1978). Because of this, Texas appellate courts have held that a film intended for even a limited purpose, such as illustration of a principle or use as a visual aid, must show sufficient similarity to the actual accident in order to be admissible in evidence. Ford Motor Co. v. Nowak, 638 S.W.2d 582, 590 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.); see also Kainer v. Walker, 377 S.W.2d 613, 616 (Tex.1964). The offering party's by affirmatively acknowledging to the jury the dissimilarities between a videotaped reconstruction and the actual occurrence can serve to alleviate unfairness that might otherwise lead to demonstrative evidence not being displayed. See Beers v. Western Auto Supply at 815. In the context of video 8 reenactments, the courts can be especially critical of efforts to offer such evidence without fully explaining any dissimilarity between the video reenactment and the actual collision. To increase your odds of admission and to properly protect your record on appeal, the proffering party needs to take special precautions when it comes to reenactments. The admission of a reenactment that is dissimilar as proof of what happened can and does result in the reversal of trial court judgments. Lopez v. Foremost Paving, Inc., 796 S.W.2d 473 (Tex.App.-San Antonio, 1990). In Lopez, the defense expert created what he described as videotape reenactment of how the accident occurred. When offered, the video did not purport to illustrate any specific principle. The jury was not specifically instructed on the extent to which it was to consider the videotape or that it was to be taken in light of factual dissimilarities with the actual occurrence. Both parties referred to the film in question as an accident reconstruction film. The court noted: While narrating the video, defense witness Nalle did not explain differences between the depiction and the actual accident, nor did he ever mention fog or darkness. In the seven pages of testimony, which comprise his narration of the video, the only statement made by Nalle which could arguably be construed as a reference to the fog and darkness was, "We're not telling you the exact visibility." Nalle admitted that the tractor-trailer in the video was shorter than the one actually involved in the accident. When coupled with the fact that the video was NOT disclosed timely to plaintiffs, the erroneous admission of the reenactment, including the dissimilarities that were not fully disclosed to the jury before its admission, was deemed sufficient to require reversal of the trial court judgment. Similarly, the Texas Supreme Court has addressed the erroneous admission of a dissimilar filmed reenactment in Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958), In Pittman, there was a crucial evidentiary dispute as to which vehicle crossed the center stripe. The Texas Supreme Court specifically found reversible error resulted from the admission into evidence of an experiment conducted under conditions that lacked similarity to those of the actual occurrence. Further, the Court ruled that the erroneous admission amounted to such a denial of the rights of the petitioner as was calculated to cause and probably did cause the rendition of an improper judgment. Pittman, 312 S.W.2d at 217. Therefore, it is critically important to recognize that, when offering

15 demonstrative evidence that is in the context of a filmed or videoed reenactment, one must establish substantial similarity, or, at a minimum, fully explain the dissimilarities as part of the evidentiary burden and timely supplement such evidence to ensure that its admission does not give rise to a reversal on appeal of any judgment obtained due to erroneous admission of evidence. XVI. DRIVERS HANDBOOKS, THIRD PARTY SAFETY ORGANIZATIONS, COMPANY SAFETY MANUALS, DRIVER TRUCKING LOGS AND OPERATIONAL DOCUMENTS ALL PROVIDE FERTILE SOURCES FOR DEMONSTRATIVE EVIDENCE The Texas Commercial Motor Vehicle Drivers Handbook in trucking cases, a Defensive Driving Manual, or the Texas Motor Vehicle Driver s Handbook are all excellent sources to establish the standard of care in truck or automobile collision cases. What better way to express and document the nature of the hazard and how to reasonably avoid it then citing as authority the driving manual a professional truck driver used to obtain his license after he recognizes it as an authoritative source reasonably relied upon by trucking experts such as himself in the field. In one case I tried, there was (at the beginning of the case) a serious dispute as to whether the idea of fascination phenonomena sometimes referred to as the moth syndrome was a legitimate concept. The idea is that drivers who are in a low state of arousal either due to fatigue, or otherwise, actually follow right into the tail lights of stopped vehicles parked on the shoulder of the road. These drivers literally plow into the back of parked truck tractors believing they are moving when they are in fact stopped. The validity of the concept was subject to disputed expert testimony but was, for all practical purposes, conclusively proven when the Texas Commercial Motor Vehicle Driver s Handbook issued by the Texas Department of Public Safety was recognized as authoritative and the following passage read and introduced to the jury: J. Communicating Your Presence Other drivers may not notice your vehicle even when it s in plain sight. Let them know you re there to help prevent accidents. When Parked at the Side of the Road. When you pull off the road and stop, be sure to turn on the four-way emergency flashers. This is important at night. Don t trust the taillights to give warning. Drivers have crashed 9 into the rear of a parked vehicle because they thought it was moving normally. Copies of the Commercial Motor Vehicle Driver s Handbook from the state of licensure of the truck tractor operator should also be obtained if he is licensed in a state other than Texas. The information set out above was bolstered when the organizational representative for the trucking company was cross examined concerning similar commercial driving handbooks from the other 49 United States which had been informally obtained by freedom of information requests to each state authority. The Defendant s own witness, who was speaking on its behalf concerning driver safety, confirmed that every single state had similar language about the existence of the phenomena. Ultimately, the witness conceded he was actually aware of the phenomena outlined by the State Commercial driving handbooks but Didn t believe it. This actual awareness of the known hazard, and the deliberate decision to not teach it, or explain how to avoid it in safety meetings, was used as a direct means of establishing the inadequate training claims against the trucking company. With the help of American Trucking Association literature, competitor safety manuals showing the custom and practice in the industry, and testimony from the defendant s own commercial motor carrier safety expert, the jury found the trucking company independently negligent for its driver parking in the emergency lane for over 1½ hours without an emergency. There are additional authoritative sources that are ripe for the picking available from multiple sources that will almost universally be recognized by trucking safety professionals. J.J.Keller & Associates, Inc., out of Neenah, Wisconsin, provides volumes of authoritative safety literature from stand alone safety manuals to audio visual safety courses in DVD and video format that provide excellent sources to create demonstrative evidence. The U.S. Department of Transportation Federal Highway Administration Office of Motor Carriers with its Commercial Vehicle Preventable Accident Manual which provides A Guide to Countermeasures is another excellent arrow to be placed in the liability quiver to be used as demonstrative evidence in trucking cases. The trucking company s own safety manuals, safety films and the Federal Motor Carrier regulations themselves are also useful tools in creating excellent demonstrative evidence. The driver s trucking logs and the operational documents (bills of lading, weigh bills, com-data checks, fuel records, etc.,) all need to be organized and explained in a trucking case. These documents are almost always critical in a case trying to establish negligent retention. The fact that the truck driver

16 habitually violates Federal Motor Carrier Safety Standards can be used to show the driver was a habitual log violator and should have been terminated long before the date of the injury made the basis of the litigation. The lawyer should introduce them and teach their relevance in a trucking case. In TXI Transp. Co. v Hughes, 224 S.W.3d 970 (Tex. App. Fort Worth, 2007) the survivors and estates of occupants of a sport utility vehicle (SUV) killed in collision with gravel truck brought a wrongful death and survival action against gravel truck's driver, gravel truck's owner and employer of driver. The court found that the admission of the fact the truck driver was an illegal alien was not error for the purposes of impeachment. It also held however, the fact the driver was an illegal alien and did not have a valid social security number were not a proximate cause of the collision. The court however found that the juries finding of negligent hiring was sufficiently supported by the evidence that the truck driver falsified his application for employment with regard to his qualifications and this fact would support a proximate cause finding with regard to negligent hiring. The opinion is an excellent source with regard to the law regarding admissibility of accident investigation reports, admissibility of FMSCA rules and regulations, and the duties owed by a commercial motor carrier. The Federal Motor Carriers Safety The FMCSA specifically requires a motor carrier to conduct an investigation and to make inquires with respect to each driver that it employs. See 49 C.F.R ,.23(d). Because of that a legal duty is owed to the public to adequately investigate a drivers qualifications to drive a commercial motor vehicle. Texas adopted the FMCSA, so motor carriers in Texas are specifically required to comply with it. Carriers who are authorized for-hire interstate or intrastate motor carriers under the Federal or State Act are required to confirm its drivers possess certain qualifications. The FMCSA specifically requires a motor carrier to conduct an investigation and to make formal inquiries regarding its driver that it employs. See 49 C.F.R ( each motor carrier shall make the following investigation and inquiries with respect to each driver it employs ) Under the Act, prospective motor carrier employers must investigate, at a minimum, the information listed in this paragraph from all previous employers of the applicant that employed the driver to operate a CMV within the previous three years. Id (d). Failure to comply with these rules and regulations can give rise to negligence per se. The case of Omega Contracting, Inc., v. Torres 191 S.W.3d 828, (Tex. App. Fort Worth, 2006) offers an excellent discussion of admissibility of motor carrier regulations and whether violations of particular provisions can be submitted to the jury as negligence per se. Also see: Reinicke v. Aeroground, Inc., S.W.3d 385, 396 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) holding trial court did not err in failing to instruct jury on negligence per se when there was no evidence that the failure (of the driver of the disabled truck) to set out roadside warning triangles as required by FMCSR was proximate cause of collision); Freudiger, 104 S.W.3d at (holding section of FMCSR governing operations during hazardous weather conditions did not create a special standard of care); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 124 (Tex.App.-Beaumont 2001, pet. denied) (holding negligence per se instruction was proper in connection with FMCSR's prohibition against employer knowingly allowing a person to operate a commercial vehicle without a commercial license); Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex.App.-Houston [1st Dist.] 1990, no writ) (noting without comment trial court's negligence per se instruction arising from several FMCSR provisions). In Dalworth Trucking Company v Bulen, 924 S.W.2d 728 (Tex.App.-Texarkana, 1996) a finding of gross neglect was affirmed in the context of an action arising out of a fatal motor vehicle collision involving a truck driver who was retained despite a history of safety violations, including over-hours driving violations. Evidence was presented from the trucking company representative at trial that the truck driver had over-hours driving violations on each of the four days preceding the wreck. He confirmed that repeated safety violations by truck drivers creates an extremely dangerous situation. He confirmed that the company managers knew about the safety violations but did nothing to suspend, terminate, or admonish drivers guilty in that regard. This type of evidence is powerful proof of the subjective component or extreme risk required to establish malice. The logs should be scanned and, at a minimum, the driver s activities over the past 70 hours should always be reviewed. Trucking logs for weeks prior to the accident can be pieced together by scotch tape and joined end to end to show a driver s sleeping patterns to establish the fact that he is normally sleeping at the time of the serious or fatal injury. Trucking logs stretched out end to end feet documenting the normal sleeping patterns circadian rhythm of a driver can go a long way in establishing fatigue played a part in the wreck. Lawyers sometimes forget that a car or truck is a machine that comes with an owner s operation manual supplied by the manufacturer. These documents provide safety warnings, instructions for use and rules of the road that can be used to establish a breach of the appropriate standard of care. Don t forget to get the manufacturer s owner s manual applicable to the power unit or tractor being operated by the driver alleged to be negligent and you will often

17 find excellent sources of demonstrative evidence to be used at trial. XVII. CHARTS AND DIAGRAMS DESIGNED TO EMPHASIZE TESTIMONY The admission of summaries of testimony is within the broad discretion of the trial court. Charts and diagrams designed to emphasize the testimony of witnesses are admissible into evidence and within the courts discretion assuming the witnesses testimony is already before the jury. Speier v. Webster College, 616 S.W.2d 617, (Tex. 1981). Also See Champlin Oil & Refining Co. v Chastain, 403 S.W.2d 376, 389 (Tex. 1965). A trial court therefore was not in error in excluding a chart of attorneys fees created to summarize or emphasize a witnesses testimony. Such a decision to exclude them was held not an abuse of discretion and alternatively was determined to be at best harmless error. Schenck v Ebby Halliday Real Estate, Inc., 803 S.W.2d 361 (Tex. App Fort Worth, 1990). Similarly, a trial court does not abuse its discretion by permitting evidence to be summarized by means of visual aid. Prestige Ford Co. Ltd. Partnership v. Gilmore, 56 S.W.3d 73 (Tex.App. Houston [14 th Dist] A timeline chart which summarized an expert s testimony was found to be admissible in evidence in Uniroyal Goodrich Tire Co. Martinez 977 S.W.2d 328 (Tex. 1998). As referenced previously, the trial judge has wide discretion with regard to this type of evidence. XVIII. LARGE MAPS OF THE UNITED STATES, A PARTICULAR STATE OR CITY. Almost every vehicle collision case should include a map of the location of the wreck. If interstate transportation is involved, a large map of the United States is a great piece of demonstrative evidence. I like to put colored pins at major cities, road changes, or places that a trucker has stopped. Those points along the trucking route are then connected with a different color string for each day of travel. This provides a graphic means to analyze the 70 hour and 8 day rules as well as the 10, and 15 hour rules. The same can be done with regard to intrastate travel by having a large blow up of a particular state or city. Rand McNally puts out a Deluxe Motor Carriers Road Atlas described as America #1 Seller. This Atlas contains more than simply roads. It contains information pertaining to low clearances, permanent weigh stations, restricted routes, and denotes federally designated routes, road conditions and construction hot lines. It also contains the latest trucker s information, including a handy reference to weight and size limits, hazardous materials and longer combination vehicle updates, as well as portions of NAFTA, and Canadian and Mexican trucking regulations. There is simply no 11 reason not to obtain one for the applicable year you have a trucking wreck case. They make excellent demonstrative evidence by themselves or portions can be scanned and used to make individual exhibits. Additionally, the internet provides a way to obtain inexpensive demonstrative evidence. XIX. ENHANCE THE DRAMA OF DEMONSTRATIVE EVIDENCE Enhance the effect of demonstrative evidence by a number of techniques: 1) Cover it in opaque butcher paper or partially translucent paper, depending on the effect you want. At the right point, tear open the package to show the surprise evidence inside. 2) Enclose evidence in clear plastic binders to give authority. Presentation of this important demonstrative evidence should be a key part of your early trial preparation. 3) Have key photographs placed on foam board and add Velcro so they can be displayed without the help of another and so they testify throughout the trial. 4) Voluminous records should be bound and tabbed to make them easy to handle. 5) With regard to certain key exhibits, make 14 copies (one for your opponent, one for you, the original for the judge and 12 copies so each of the jurors have one). Then put it on a visual presenter, overhead projector, or have it digitized and display. Even the screen can present drama with the right equipment. Jurors love gadgets that they have not seen before. Use them to add drama to your presentation. 6) Put the data on a jump drive and present it by plugging it into a USB port for added excitement or suspense deliberately having your computer crash is actually an attention getter if you can rehabilitate quickly and not miss a beat. 7) Remember it has to get up the stairs or in an elevator and design your exhibits accordingly. 8) How far is it? About 10 feet? (get out the tape measure). 9) Subliminal messages trail blazer, confederate flags, bumper stickers, quotes or logos or C.B. handles on the side of a truck often tell the real story. 10) Bigger is not always better. Little may actually increase the chances the photograph comes in and the use of a visual presenter can make it bigger than what one could carry through the courthouse door. By using little, it also reduces the risk of objection and the small photograph may contain key evidence that you know will be an important part of

18 your case that you don t have to advertise to the other side until it s too late. 11) Use a RED BOOK (a red binder) in which to keep the Key Pieces of evidence. XX. CONCLUSION Demonstrative evidence is a key part of every trial, especially so with regard to auto/truck collision cases. It will enhance your stature with the jury. The types of demonstrative evidence used are only limited by the trial lawyer s imagination. When words alone are insufficient, demonstrative evidence can tell the whole story and increase your chances for a winning strategy. A picture truly is worth a thousand words and can seamlessly join liability, causation and damages in a single document. Hopefully, this paper will spark your imagination to use demonstrative evidence more effectively in the trial of automobile/trucking collisions. 12

19 Cases TABLE OF AUTHORITIES Beers v. Western Auto Supply at Boothe v. Hausler, 766 S.W.2d 788 (Tex. 1989)... 5 Champlin Oil & Refining Co. v Chastain, 403 S.W.2d 376, 389 (Tex. 1965) City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex 1995)... 5 Cryts v. Ford Motor Co., 571 S.W.2d 683, 691 (Mo.App.1978)... 8 Dalworth Trucking Company v Bulen, 924 S.W.2d 728 (Tex.App.-Texarkana, 1996) First Employees Insurance Company v Skinner, 646 S.W.2d 170, 172 (Tex, 1983)... 7 Ford Motor Co. v. Nowak, 638 S.W.2d 582, 590 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.)... 8 Freudiger, 104 S.W.3d at Garza v Guerrero, 993 S.W.2d 137, 140 (Tex.App. San Antonio 1999, no pet)... 5 Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla.1982)... 8 In re K.M.B., 91 S.W3d 18 (Tex.App. Fort Worth, 2002)... 5 Kainer v. Walker, 377 S.W.2d 613, 616 (Tex.1964)... 8 Lopez v. Foremost Paving, Inc., 796 S.W.2d 473 (Tex.App.-San Antonio, 1990)... 7, 8 Lorusso v. Member Mutual Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980)... 5 Malone v Foster, 956 S.W.2d 573, 577 (Tex.App.-Dallas 1997) aff d 977 S.W.2d 562 (Tex. 1998)... 5 McCormick; 9 A.L.R.2d N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 124 (Tex.App.-Beaumont 2001, pet. denied) Perez v. Bagous, 833 S.W. 2d 671 (Tex.App.-Corpus Christi, 1992)... 6 Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958)...8 Prestige Ford Co. Ltd. Partnership v. Gilmore, 56 S.W.3d 73 (Tex.App. Houston [14 th Dist] Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 396 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) Richards v Commission for Lawyer Discipline, 35 S.W.3d 243, 252 (Tex App.-Houston[14 th Dist.] 2000, no pet.)... 5 Schenck v Ebby Halliday Real Estate, Inc., 803 S.W.2d 361 (Tex. App Fort Worth, 1990) Speier v. Webster College, 616 S.W.2d 617, (Tex. 1981) Texas Dept. of Transp. v. Fontenot, 151 S.W.3d 753 (Tex.App.- Beaumont, 2004)... 6 TXI Transp. Co. v Hughes, 224 S.W.3d 970 (Tex. App. Fort Worth, 2007) Uniroyal Goodrich Tire Co. Martinez 977 S.W.2d 328 (Tex. 1998) Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex.App.-Houston [1st Dist.] 1990, no writ) Other Authorities 10 Misko, Videotape for Litigation, 26 So.TEX.L.J. 485 (1985)... 8 Witke, Higgins and Babcock, "Video Tape is Worth a Thousand Words": Use of Demonstrative Evidence in the Defense of a Product Liability Case, 50 Ins.Counsel J. 94, 97 (1983)

20 8 Rules Tex.R.Evid. 103(a)... 5 Regulations 49 C.F.R ,.23(d)