Part of being a Chicago trial lawyer is presenting your client’s side of a story to a judge and jury. One way to do this is by submitting evidence during litigation, such as testimony, diagrams, and pictures. But what happens if a judge decides that you can’t show some of your evidence? How do you make sure that your the jury understands your client’s story?
Photographs can be a very persuasive way to drive a point home to the jury at trial. For example, if you want to demonstrate the horrific nature of a car crash then nothing gets this across better than photographs of the totalled car. Or if you’re arguing that doctors at a local Chicago hospital dropped the ball and didn’t prevent or treat your client’s bed sores, then pictures of the exact size and nature of those sores will underscore how impossible they were to miss.
However, the argument against allowing such pictures is that they could sway the jury to the point that they ignore the facts before them and focus only on the visual story presented. It is up to the judge to ensure that both the plaintiff and defendant tell their story in a way that doesn’t unduly prejudice the jury against the other side, see Dicosola v. Bowman (342 Ill App 3d 530). To do so a judge will typically only allow evidence that is relevant to the case and try to keep out unnecessary theatrics.
But aren’t scene photographs and images of a car after a crash relevant to a case? Don’t they allow the jury to get a better sense of what actually happened and place themselves in the scene? So why would such photos ever be barred from evidence for not being relevant?
One rule of thumb has been that if you are using photographs to demonstrate a point, then they can only be admitted if that point is supported by expert testimony. For example, if a plaintiff is suing for an injury sustained after a fender bender, then the defense might submit photographs of the limited amount of damage to both vehicles to highlight the minimal impact sustained in the crash. But if there is no expert to testify that there was a relationship between the extent of the plaintiff’s injuries and the degree of damage to the vehicles, then the photographs invite the jury to draw this conclusion on their own. So unless an expert were to state that the plaintiff could not have sustained the injury because of the limited nature of the crash then the photographs will not be allowed.
If there is no expert opinion to guide them then the jury essentially becomes the expert. But if you ask them to judge as experts with no previous knowledge and only given biased evidence then they will typically come up with biased opinions. In this example if the defendants were allowed to show the photographs that dispute the correlation between the injury and the accident then the jury would only be getting one side of the story. The defendant would certainly not mention that sometimes there is no correlation between the degree of damage and the extent of a plaintiff’s injury. A person’s car may sustain minimal damage in an accident while they are severely injured. But instantly upon viewing a crash that photographs as a fender bender most jurors are disposed to discredit the extent of injuries, which is why such photographs are generally not allowed without expert opinion.
Keeping photographs out of evidence can work for or against either side, depending on the individual case. If a plaintiff wants to underscore the negligent nature of a driver by showing how much damage he caused in the accident, then the defense could argue that this prejudices the jury against their client. And again, it is up to the judge to decide what evidence gets presented to the jury so as to remain fair to both sides.
So as a lawyer what do you do if a judge decides that you can’t show the jury pictures? Can you still get your client’s story across? Yes, you just have to be more creative.
Testimony is a great way to frame and tell a story. Police officers, a plaintiff’s doctor, and the plaintiff him/herself are all opportunities to lay out what happened and what the effects are. While a picture may be worth a thousand words, a few well-chosen words can be just as valuable.
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