In the hey-day of hippies and LSD, a critical phrase was ‘you’re either on the bus or off the bus.” Loosely translated, it meant you were either “with it,” i.e. fully along for the ride, or you were being left behind. But for the world of trial advocacy, the phrase can have a decidedly different meaning, especially in the context of an opening statement.
It is beyond question that visuals affect judgment. Showing disturbing photos, i.e., gruesome images of harm, can alter judgment on both liability and damages. Edelman, The Impact of Graphic Injury Photographs on Liability Verdicts and Non-Economic Damage Awards (2009), http://www.thejuryexpert.com/2009/09/the-impact-of-graphic-injury-photographs-on-liability-verdicts-and-non-economic-damage-awards/
It is also clear that “showing” is more effectual than “telling.” As described by one author,
When you tell rather than show, you simply inform your reader of information rather than allowing him to deduce anything.
You’re supplying information by simply stating it. You might report that a character is “tall,” or “angry,” or “cold,” or “tired.”
That’s telling.
Showing would paint a picture the reader could see in her mind’s eye.
If your character is tall, your reader can deduce that because you mention others looking up when they talk with him. Or he has to duck to get through a door. Or when posing for a photo, he has to bend his knees to keep his head in proximity of others.
https://www.jerryjenkins.com/show-dont-tell/
But a dilemma remains. If words alone are used, each juror of necessity paints a picture of her own creation. It may match the narrator’s or be wildly different. Without some other aid, the lawyer(s) will never know.
So, what does one do? A simple answer is a photographic aid or drawing, deployed in the opening statement, is a better tool at communicating what the lawyer seeks to show and ensuring uniform understanding among the jurors. But a picture is invariably smaller than what needs to be conveyed, especially when describing a location where something occurred.
Hence, take the jury there. Not as in a visit, but make the courtroom the place. Consider an accident that occurred on a bus, where the layout of the bus, its size, and the location of various individuals are significant. Use a diagram, but then make the courtroom the bus, right from your opening statement.
Members of the jury, this bus is 42 feet long. That’s from the edge of this jury box to [walk and show.] From your jury box you can look right down the bus, from the rear to the front.
Here we go – there are ten rows of seats, with an aisle [walk and show]. And here [stand at correct measurement], 32 feet from the rear, is where the tour guide stands. Right here, next to where the court reporter is sitting.
And up here, 40 feet from the back, is where the driver sits. And when you get there, that’s where the yellow line is, to warn people not to stand where it’s dangerous.
Ten rows of seats, plenty of room.
Yellow line, do not cross.
And it is when the plaintiff ignored that yellow line, and stood at the 41 foot mark, away from the seats, away from where you can see and hear the tour guide, that’s where the injury occurred.
Be on the bus. Or, more properly, make sure the jury is on the bus, and that all the jurors are on the same bus. And thanks to Philadelphia attorney Tom Duffy for these insights.