Preparing a case for trial is a two pronged endeavor. The first being the legal preparation of the case, which often times takes years, and the presentation of the case. The presentation of a case is the strategy and approach that will outline how the case is communicated to the trier of facts. One important aspect of case presentation is demonstrative aides. Demonstrative aides or evidence come in many forms and is often thought of as some type of graphic but is defined as,
Actual objects, pictures, models and other devices which are supposedly intended to clarify the facts for the judge and jury: how an accident occurred, actual damages, medical problems, or methods used in committing an alleged crime. Many of these are not supposed to be actual evidence, but ‘aides’ to understanding. A model of a knee or a photograph of an accident scene obviously helps, but color photos of an operation in progress or a bullet-riddled body can excite the passions of a jury. The borderline balance between legitimate aides and evidence intended to inflame a juror's emotions is in the hands of the trial judge.[i]
Prejudicial versus probative is the measure the Court uses but often the real measure is recovery versus cost. Removing labels of judge, jury, arbitrator, etc., people today have come to expect a cogent and organized presentation of information, in this case, evidence. The need for demonstratives is real but the cost to create can be a barrier, in particular when the case is not a high dollar case. Therefore, the crucial point is how to create a demonstrative from an understanding of what is being illustrated, communicated and how to make it persuasive to the trier of facts.
The “Chicken Bones Case”
Demonstrative evidence is nothing new at trial. The complexity and media used for demonstratives has evolved over time, but they have been used for hundreds of years. In 1857, Abraham Lincoln had a medical malpractice case that came to be known as the “Chicken Bone Case[ii].” This case involved a carpenter, Samuel Fleming, who was injured as a result of a chimney collapse whereby he broke both of his legs. The plaintiff alleged that the doctors, Thomas Rogers and Eli Crothers, had set his legs incorrectly causing the bones to heal improperly leaving his legs crooked and one leg shorter than the other. In March of 1856, Samuel Fleming filed a law suit seeking $10,000.00 in damages. Lincoln was retained by the doctors as their defense attorney.
In what was seen as a plaintiff friendly case, Lincoln used two chicken legs to demonstrate the anatomy of bones.
Lincoln saved his lesson on how bones heal for his summation to the jury. Then, holding up two chicken-leg bones–one from an old chicken and the other from a young one–he demonstrated to the jury their respective texture and resilience. The bones of the young bird were supple, while those of the old chicken were brittle and broke easily. Fleming, being in middle age, Lincoln pointed out, would have bones more closely resembling the latter than the former. Unable, according to Lulu Crothers, to ‘remember about the lime or calcium deposited in older peoples’ bones,’ Lincoln told the jurors that the bone from the older chicken, ‘has the starch all taken out of it–as it is in childhood.’
This graphic demonstration had the desired effect on some of the jurors, a majority of whom probably entered the courtroom predisposed toward Fleming and prejudiced against the more affluent defendants. After 18 hours of deliberation, the jurors failed to reach a decision. [iii]
The case was later settled, but what Lincoln did in that case was to use demonstrative evidence or aides to persuade the jury through education. In order to see the magnitude of the impact that the chicken legs played in that trial, stop and think how Lincoln could have educated the jurors in the absences of a demonstrative. Not only did Lincoln educate, he also persuaded the jury. The simple truth is that it would have been difficult to accomplish what Lincoln did without a visual aid. Most people are visual learners, which was true then and even more so today. The same principles apply today as they did in 1857, and attorneys need to consider this as they are developing their case and deciding on what demonstratives are needed.
[i] Black’s Legal online dictionary.
[ii] Samuel G. Fleming vs. Dr. Thomas P. Rogers and Eli K. Crothers, Weider History Network: HistoryNet; Charles M. Hubbard is the Dean of Lincolniana and Associate Professor of History at Lincoln Memorial University. This article was originally published in the August 1998 issue of American History magazine.
[iii] Samuel G. Fleming vs. Dr. Thomas P. Rogers and Eli K. Crothers, Weider History Network: HistoryNet; Charles M. Hubbard is the Dean of Lincolniana and Associate Professor of History at Lincoln Memorial University. This article was originally published in the August 1998 issue of American History magazine.