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Show and tell

Build your case by integrating images and words

By Michael Rappaport

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean - neither more nor less.” Words are the stock-and-trade of the legal profession. But few lawyers suffer from the delusion that they can wield words with as much precision as Lewis Carroll’s thin-shelled, bumptious character in Alice’s Adventure in Wonderland.

Words tend to be elastic, flexible and slippery. Generally, words are considered to be worth less than one-tenth of one per cent of a picture. Because words alone are often insufficient to argue a case, lawyers have relied upon demonstrative evidence – illustrations, charts, graphs, props, videos and animations – to present their case in boardrooms and court rooms for decades.

While lawyers have long recognized the value of demonstrative evidence, Hassan Fancy – a personal injury and medical malpractice lawyer at Fancy Barristers P.C., in Mississauga, Ontario – goes one step further; he has developed a formal methodology to integrate text and visuals in the context of litigation. The product of ten years of work, Hassan’s recent book, Demonstrative Advocacy: Understanding and Constraining Partiality in Adjudication, seeks to establish a scientific basis for the use of demonstrative evidence as a means to address the inherent inadequacies of words alone.

“Words can accommodate a wide range of meanings. If we rely on words solely, the judge or jury will interpret the words based on their life experiences,” Hassan explains. He adds, “Life experience isn’t evidence.”

The source of the problem is not the judge, juror, lawyer or witness, but rather, the nature of the evidence tendered, according to Hassan. In almost every hearing the predominant, if not exclusive form of evidence is either written or oral language, comprised of words, he writes.

Demonstrative Advocacy (D.A.), is Hassan’s methodology to counter the biases that are introduced in adjudication when oral and written evidence is filtered through the life experience of the trier of fact.

“When we hear or read a word, we pull up images and associations from our minds to match to the word and put together the word and image or association to create meaning,” Hassan explains. “If an illustrated story is provided, we will use the images provided instead of images from our life experience to define the words.”

In essence, the D.A. model attempts to mimic the innate human process of connecting mental images to textual evidence. D.A. uses visual images that materially represent the witness’ experience, so that the trier of fact can rely upon the images provided rather than images from his or her life experience. In D.A. images are used to visually define key textual evidence and are intended to paint a more accurate picture of the plaintiff’s case than words can achieve by themselves.

In practice, applying D.A. to a case may involve creating story book to illustrate how an accident happened and the plaintiff’s position before and after the accident.

Saima Fancy is both Hassan’s spouse and collaborator in the development of the D.A. model. As a Senior Demonstrative Theorist at Graphicus Persona, a litigation support firm, Saima has extensive experience with assembling technical and medical illustrations, audio and visual media and accident reconstruction animations for plaintiff-side litigators. Leading a multidisciplinary team that includes a doctor, illustrator and computer animator, Saima has had a hand in the preparation of much of the demonstrative evidence that Hassan has used in discovery and at trial.

In contrast to the traditional use of demonstrative evidence, where lawyers relied upon a single image of the accident or injury, Saima says that under the D.A. model a series of images are used to tell the plaintiff’s story. For each case Saima assembles a book of demonstrative evidence which can range from four to 20 pages. The book of demonstrative evidence is comprised of three sections. The first section portrays the plaintiff’s position before the accident and may use documentary photos and videos to show the plaintiff’s level of health and activity. The second section attempts to establish liability for the accident and depicts how the defendant’s negligence or failure to act led to the accident. The third section depicts the plaintiff’s life post accident and may include medical illustrations, photos and day-in-the-life videos.

On the issue of admissibility, Saima says that once a book of demonstrative evidence is completed it is crucial that it be adopted by the counsel’s expert witnesses.

Recently, the value of the D.A. model was put to test when Hassan represented a pathological gambler who suffered from Parkinson’s disease in a law suit against the Ontario Lottery & Gaming Corporation for failure to keep him out of their casinos, despite signing a self exclusion agreement. Hassan used illustrations to shatter false stereotypes against addicted gamblers. A key illustration on the cause and effect of pathological gambling used visuals to depict the textual descriptions of pathological gambling to show that it was not a failure of “will power” but of the plaintiff’s neural limbic system gone awry that led to his compulsive behavior.

The action was successful. After reviewing the demonstrative evidence tendered, Justice E.M. Macdonald of the Ontario Superior Court of Justice found that the D.A. model “goes a long way in constraining subjective interpretations, reducing acrimony, and expediting settlement.”