We’ve all heard the saying, “a picture is worth a thousand worlds.” And most of us are familiar with the idea that there are multiple different modes of learning — that is, that people process information in different ways, and that while there are certainly verbal learners, or people who learn best by reading the written or hearing the spoken word, there are people who learn best in other ways, such as visual learners, who learn best through images or pictures.

These concepts are why demonstrative evidence is your friend in court — it’s a way to empower your expert and leverage the investment your client made in hiring them.

Black’s Law Dictionary online defines demonstrative evidence as “real evidence that doesn’t depend on a testimony as it can be seen by the jury and the court.” Other legal dictionaries and treatises definite it similarly. The key part of this definition is “can be seen by the jury and the court” — that is, it is visual evidence, whether in the form of a photograph, a schematic, a chart or graph, a model, or some other graphic representation. It can be tremendously powerful and can make or break your expert’s testimony.

Here’s the thing about demonstrative evidence: as the very term implies, it “demonstrates” something. It’s NOT fact evidence — you need that separately — but it is a way to illustrate, highlight, or call out what is important. It’s the judicial equivalent of a Powerpoint presentation: a way to emphasize what should be emphasized. That means that while it ultimately needs to tie back to — and be supported by — authenticated documentary or other fact-based evidence, or reliable witness testimony, it can and should take liberties with presentation, so that the point you want to get across is driven home with all the subtlety of a presidential campaign ad.

Judges and Jurors Love Show-and-Tell

Before getting to the practical reasons why demonstrative evidence is valuable, start with a basic concept: judges are human. They are humans who spend six, seven, or eight hours per day listening to people talk, and talk, and talk. They get — to be blunt — bored. Don’t believe it? Think about how long you can listen to strangers jabber on about situations or occurrences you have no personal knowledge of or stake in. For example, think back to the last time you were at a party and were cornered by someone who described their vacation to you practically minute by minute, or by someone who obviously thought their job in risk-assessment or logistics was as fascinating to you as it is to them (or, to be fair, think about the deer-in-headlights look in the eyes of a non-lawyer you cornered at a party and subjected to a blow-by-blow description of your last trial). Bringing out photographs or other graphic evidence will get judges to sit up and take notice in a way that another thousand words of “expert-ese” will not.

And what goes for judges goes doubly for jurors, since they (unlike judges) often have no background, experience, or context to help them understand your expert’s testimony — but they can look out and understand a photograph or simple chart. Bringing out demonstrative evidence can help prevent jurors’ eyes from glazing over, which is critical, because if they tune your expert out, why even bother having the evidence in the first place.

Your expert simply can’t get his or her point across if no one is listening to him or her. Since  by the time you get to your expert, the court has typically been subjected to opening statements and a parade of fact witnesses to set the context, the judge and jurors have already used up most up of their attention span. Have mercy on them and make it easy for your expert: have the expert create and use demonstrative evidence.

Photographs: Show, Don’t Tell, What Something Looks Like

Many cases involve something’s appearance. It could be the condition of a car after an accident. It could be the contusions on the victim of domestic violence. It could be the damage to a building after a fire, or the shape a rental property is in after the tenant has moved out, or the condition of a poorly maintained staircase or walkway, etc. This is the easy and obvious case for the use of demonstrative evidence: instead of having your expert just narrate the situation (e.g. “the fire caused extensive charring to the fall behind and ceiling above the stove”), show it. The visual representation will be much more powerful and easier to grasp than any verbal narrative could possibly be.

Related cases involve comparisons between two places or objects. Say that you are defending a former commercial tenant being sued by the landlord for unpaid rent, and you want to show that the landlord failed in its duty to mitigate by asking an unreasonably high price to re-let the space. Your real estate expert could just orally describe the features of the premises in question and why they are less desirable than those of other spaces on the market at the same price — or (s)he could show and narrate photographs of the premises, showing its cramped, dark, awkward layout and contrasting it with photographs of other available restaurant space which is lighter and airier. Which approach do you think will be more effective?

A good rule of thumb is: if you can take photographs of what the expert is describing, take them and have the expert use them. And when we say “photographs,” we also mean X-rays, MRIs, ultrasounds, and so on. Essentially, if you can show what something looks like instead of just verbally describing it, it has far greater influence on the viewer. For example, if you have a personal injury case, what do you think will impact the jury more: your medical expert saying “the plaintiff had a compound fracture, which is a fracture where the skin is pierced by a broken bone,” or showing the jury a photograph of a bloody bone sticking out of the plaintiff’s leg?

The use of photographs crosses or blurs the line between actual fact and demonstrative evidence, so they will have to be authenticated by someone with personal knowledge — that is, the person who took them. And that means you need to lay the groundwork.

Lather, Rinse, Repeat & Repeat Again: Using Your Expert to Review Powerful Fact Evidence

You’ll generally have shown your photographs during your fact witness testimony. But there’s a limit to how many times you have your fact witnesses flash the same photos before opposing counsel objects or the judge him/herself tells you to move on. But if the photos are compelling, you’ll want to show them again and again — you’ll want to burn their images into the jurors’ eyes.

Have your experts show them again. There’s no real cognizable objection to the photos being shown again as your expert uses them to make some oh-so-expert-y point. You can use your expert not just for his or her expertise, but as an excuse to run your best and most affecting evidence under the fact finders’ noses again.

Graphics Which Show Spatial Relationships: Help the Fact Finder Envision What Was Where

Which is easier to understand: a map or drawing showing the location of buildings, cars, and/or people, or someone droning on and one about how “The first vehicle was in the outer northbound lane. The second vehicle was in the outer southbound lane. The second vehicle came around a 60-degree curve from the east and would have come into view of the first vehicle roughly 275 meters away . . .” etc.?

There is NO better way to show locations and spatial relations than graphically, so prepare the appropriate maps, drawings, or models (models are particularly valuable when there are three, not just two, dimensions in play — e.g. when height or elevation matters, too) for your expert and let him or her use them to show, simply, quickly, and unambiguously where the various players and pieces were. Obviously, you may need to prepare several demonstrative exhibits, to show locations at the start of an event, while it is occurring, and at the end, etc. But the goal is to be clear about what happened, so there’s no such thing as “overkill.” Either the situation is clear to the fact finder or it isn’t. If it is clear, then the effort and cost put into preparing the exhibits is well worth it. If it is not clear, then you didn’t prepare enough (or good enough) exhibits.

Blow-ups: Make the Small Big

Your expert may be testifying about fine or small points; for example, if you have a handwriting expert, he or she may be testifying about how a particular loop or curlicue differs from one hypothetical signature to another. It can be awfully hard to the fact finders to see something in the equivalent of 12-, 14-, 16-, 18 -, or even 24-point type, which is about how large most of us sign papers. On the other hand, if you blow the relevant signature elements up to 4”, 5” or taller, then everyone can see and follow your expert’s discussion of the key similarities or differences.

The same principal applies whenever any key elements are themselves small. For example, say you have a product liability case, and the part of the device/product that failed is ½” or 1” long — have a photographic reproduction of it at 10x normal scale, so that the judge on his/her bench, or the jurors in their box, can actually see it.

“Look here!”—Highlight the Critical Elements

Another advantage of demonstrative evidence is the ability to add highlighting, emphasis, even arrows pointing to the important elements or details. Not only can you blow up any small details, but you can pick them out in color or bold type, circle them, and have an arrow pointing straight at what you really want the fact finders to notice. There is no need or reason to be subtle: think about being as obvious as the OxyClean or ShamWow guys hawking their wares. You want whatever is important to “POP!” like the tagline on a late-night infomercial.

Hire Professionals—Amateur Hour Does Your Client No Favors, and Saving a Few Hundred Dollars is a False Economy

The author spent 18 years in the publishing industry. He’s personally conversant enough with several graphic and layout programs as to be able to, with a straight face, claim he can do book layout, create catalogs, or even illustrate the average math book or business text. But he’s also smart enough to know that does not, in any way, shape, or form, make him a graphic artist. The difference between your author’s best efforts and those of a professional is the same as the difference between a bright pro se litigant’s efforts and your own abilities, as an educated, trained, and experienced attorney, at litigation … which is to say there is no comparison.

Don’t think that you and your expert (unless he or she is part of a larger organization with its own internal graphics department or unit) are an adequate substitute for a professional graphic artist. Assuming there’s serious money at stake — and if there wasn’t, you wouldn’t be hiring an expert in the first place, would you? — it’s worth the investment to hire a professional to create your demonstrative evidence. Layout, presentation, emphasis … the pro will know how to make these and other elements work for your case in a way that you, or a subject matter expert, simply won’t. Think about the difference between a slick pharma, perfume, or major insurance company ad, and the ads aired on local cable TV by your nearby used-car dealer — that’s the sort of qualitative difference we’re talking about.

Summary—Demonstrative Evidence is Often What Separates the Amateurs from The Professionals

Anyone can talk to another person — e.g.. take direct testimony of an expert — and get the basic point across. But can you sell that point (and let’s be honest: litigation is selling your client’s point of view)? Pros can sell; amateurs don’t.

A forensic document examiner is better known as a handwriting expert. They come into play when one person says that another person signed some document — a contract, a lease, a will, a power of attorney, a promissory note, etc. — but the second person, or his or her representative, denies that he or she did. At that point, it may be necessary to have an expert examine the purported, or claimed, signature, to see if it is — or is not — that person’s signature.

How do they do this? They compare the purported signature to known or uncontested examples of that person’s signature, to see whether, and to what extent, they match. That means that the samples, known as “exemplars,” provided to the expert are critical: as in the old computer-related acronym GIGO, or “garbage in, garbage out,” poor or inadequate samples will result in a weak, erroneous, or easily neutralized (by the other side) expert opinion.

What Do Experts Look for When Analyzing a Signature?

First, a quick primer on what forensic document examiners look for when comparing signatures. Obviously, they look at the shape of the letters — does the “A” in the purported or questioned signature match the “A” in the known exemplars of that person’s signature, for example. But that’s only the start of the analysis: they also look at (among other things) —

• The slant of the signature: does it slant right or left, upward or downward?
• The weight or thickness of the lines
• Whether it rests on, above, or below the signature line, and how far below the line any extensions of letters (like the lower part of a “p” or “g”) go
• Do the loops or curls appear to have been drawn counterclockwise or clockwise?
• Where are the starts and stops in the signature?
• How “fluid” is the signature, and does it appear to have been drawn in one smooth move, like a well-practiced signature would be, or does it look like there were hesitations, as if someone were trying to copy something they are unfamiliar with?
• The handedness — was it evidently made by a righty or lefty?

There are many elements to the analysis, and two signatures can look superficially the same but yet show significant inconsistencies on deeper examination. That’s why good exemplars are critical: you need samples that will let the expert do a deep, detailed analysis of multiple elements of the signature.

People Don’t Sign Things the Same Way Every Time

Complicating the handwriting expert’s job is that people do not sign things the same way every time. To begin with, people sign differently depending on how “formal” or “informal” the document is. We take more care on “weighty” documents that affect our rights than we do on documents carrying few or no consequences, and that means that we tend to take more time signing, and have a more legible signature, on formal (important) documents than on informal (less or unimportant ones). Think about signing an apartment lease or contract to buy a home or your will. Now contrast that with scrawling your signature on the receipt for take-out pizza or even the sign-in sheet in a courtroom and you’ll understand the difference. Is your signature the same in these different contexts? Almost certainly not.

Second, we tend to sign things we sign all the time differently than we sign one-off or uncommon documents. With things we sign all the time — cover letters; checks — we run on autopilot; with less-familiar documents, we often think about them more, and that thinking introduces a hesitation into, and therefore alters, our signature.

Third, the amount of space you have to sign will alter your signature: if you normally have an expansive signature but are now cramming it into a form’s small signature box, that will change letter forms and spacing.

Fourth, signatures change over time. Just as we are not static or unchanging — we learn, we grow, we change — so, too, does our signature change over time. Look at a document you signed 10 or 20 years ago and compare it to how you sign today — it’s virtually certain that even your inexpert eyes will see differences.

Fifth, the conditions under which we sign affects how we sign: when you’re in a rush, or tired, or had too much coffee or some wine, you will sign differently than on those occasions you are unhurried, unrested, and unaffected by what you’ve been drinking.

And sixth — we’re not robots. We simply do not do things the exact same way every time, even when we do something several times in quick succession under the same or similar circumstances. Take out your pen and sign your name five times; even though the five signatures should be very similar, they are not 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} identical. That’s because we’re human, not Siri or Alexa.

What Makes for a Good Exemplar?

Because signatures change over time, you want to provide your expert with exemplars that are as contemporaneous as possible with the signature being examined. If, for example, someone claims that your client signed a document 20 years ago giving that person a life estate in a home (which was the issue in the author’s most recent experience with forensic document examiners), then you want to provide your expert with signature samples from 20 years ago, or as close to that time frame as possible.

Because we sign formal and informal documents differently, if the questioned signature is on a formal document — something like a deed, a lease, a will, etc. — you want to provide samples of similarly formal documents. And conversely, if the questioned signature is on an informal document, be sure to provide informal exemplars.

Because we tend to sign document types we sign day-in and day-out differently than we sign unusual or uncommon documents, try to provide exemplars of the same, or at least similar, type(s) of document(s). And because the amount of space for signature affects how we sign, try to provide exemplars which have similarly sized signature lines or blocks.

Quantity Has a Quality All Its Own

Remember, our signatures are never identical, even when we sign two documents in close succession: there is always some natural variation. In a sense, none of us have “a” single signature; what we think of as our signature is really the current “average” of how we sign documents. Sometimes the letters of our signature will be slightly larger, sometimes slightly smaller; sometimes closer together, sometimes wider apart; sometimes more legible, sometimes less; etc. Any one sample of your signature will almost certainly not match 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} any other single sample. Therefore, you want to provide multiple samples, so that as the expert examines exemplar after exemplar, he or she can derive the common elements and compare those fundamentals of the person’s signature to the signature in question.

But Don’t Forget Quality

The expert needs to be able to see the signature’s elements clearly. Originals are better than copies, since there is no “blurring” due to the copying process and certain aspects (like, for example, the pressure used by the signor when signing) are more easily seen in originals. If you can’t provide an adequate number of originals, provide the best-quality copies you can — for example, “first generation” copies of originals, not copies of copies, since with each successive copying, detail and crispness is lost.

Summing It Up: What You Should Provide Your Expert as Exemplars

When trying to determine if person A did or not sign a certain document, provide as many samples as possible of how A signed similar documents (similar level of formality or import; similar type of document; similar space for his or her signature) at the same or a similar point in time as the document in contention. The more, the better: 60, 70, or more exemplars are not too many, because you want your expert to be able to confidently state that he or she has identified the fundamental elements of that person’s signature, explain them to the court, and state whether those same elements are (or are not) found in the questioned document.

A failure to provide enough, or relevant enough, or sufficiently high-quality exemplars will leave your expert vulnerable on cross examination. Opposing counsel who knows what they are doing will be able undercut your expert’s conclusions by showing that the exemplars are from sufficiently different types of documents or circumstances or time periods that they are not relevant; or perhaps they will show that there were insufficient exemplars as to draw firm conclusions; or that the exemplars are of such low quality that no fair comparison can be made.

No matter their academic qualifications or experience, a forensic document examiner’s opinion is only as good as the samples they have to work with — give them what they need to help your case.