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Sneak some demonstrative aids into the jury room – by making them contract exhibits

Remember the cliché about a picture being worth a thousand words? Nowhere is that more true than the courtroom. That’s why in litigation, lawyers and expert witnesses often use so-called demonstrative exhibits — diagrams, time lines, charts, tables, sketches, etc., on posters or PowerPoint slides — as teaching aids to help them get their points across to the jury during testimony and argument.

Are jurors allowed to refer to the parties’ demonstrative aids while they’re deliberating? That depends. Jurors normally take “real” exhibits — like a copy of the contract in suit — into the jury room with them and refer to them during deliberations. Judges, however, sometimes won’t allow the jury to take demonstrative exhibits with them, on the theory that the jurors are supposed to decide the case on the basis of the “real” evidence and not on documents created solely for litigation by the lawyers.

True, in U.S. federal-court cases, Rule 1006 of the Federal Rules of Evidence allows summaries and the like to be admitted into evidence. Trial judges, however, have significant discretion over evidentiary matters; if a judge decides that a particular demonstrative aid should not be given to the jury for use in its deliberations, it’s usually the end of that discussion.

If you plan ahead when drafting a contract, your client’s trial counsel might later be able to sneak a demonstrative aid or two into the jury room through the back door — no, through the front door, but at the back of the contract — as “real” evidence, not just as a demonstrative exhibit, to help the jurors understand what the parties agreed to.

Ask yourself: Is there anything I’d want the jurors to have tacked up on the wall in the jury room — for example, a time line of a complex set of obligations? If so, think about creating that time line now, and including it as an exhibit to the contract. The exhibit will ordinarily count as part of the “real” evidence; it should normally be allowed back into the jury room without a fuss.

Of course, before the contract is signed the parties would have to agree to include your stealth demonstrative exhibit in the contract document. But their reviewing your exhibit for correctness could be a worthwhile exercise — and if their review makes them realize they don’t agree about something, it’s usually better if they find that out before they sign.

There’s always the risk of unintended consequences: The demonstrative exhibit you create today might not create the impression you want to create in a jury room years from now. But that risk is there when you write the contract itself.

Your time line, chart, summary, diagram, etc., doesn’t necessarily have to be a separate exhibit: modern word processors make it simple to include such things as insets within the body of the contract.

Postscript: Writing this posting brought to mind a piece that a friend and colleague, Hank Jones of Austin, published a few years ago: See Envisioning visual contracting: why non-textual tools will improve your contracting.

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