DEMONSTRATIVE EVIDENCE PROBLEMS IN A PERSONAL INJURY CASE

DEMONSTRATIVE EVIDENCE PROBLEMS IN A PERSONAL INJURY CASE PAUL N. LUVERA JR. In the majority of personal injury trials demonstrative evidence represents an essential part of the case. Such evidence, when used effectively, is an invaluable aid to clarify the issues during the course of the trial. Through the use of demonstrative evidence the judge and jury will gain a wider perspective of the important aspects of the case and will be able to understand, to a greater extent, the pain and suffering of a client, loss of income, shortened life expectancy and body injury. While the experienced trial lawyer will have little difficulty with such evidence, the general practitioner may find the admission of evidence such as illustrations, photographs, X-rays, models, mortality tables, hospital records and the like, confusing and troublesome. This article is intended to be a brief discussion of the fundamental rules involved in the admission of such evidence and their importance in personal injury litigation. MODELS AND SAMPLES

Models are a very common type of illustrative evidence, and determination of their admissibility rests within the discretion of the trial court.' Normally evidence indicating that the model is appropriate for demonstrative purposes is required, "but probably the appropriateness will often be pertinent only to the weight of the model as evidence." 2 In 1964, the Washington court appears to have tightened the requirements regarding the admissibility of illustrative exhibits. In deciding whether to admit a knife for illustrative purposes, the court, in State v. Gray,' spoke of the admission of models, samples * Paul N. Luvera, Jr., LL.B. 1959, Gonzaga Law School. Mr. Luvera is a partner in the firm Bannister, Bruhn & Luvera, Mount Vernon, Washington. I Schroeder v. Hotel Commercial Co., 84 Wash-. 685, 147 Pac. 417 (1915) ; Kiessling v. N. W. Greyhound Lines, 38 Wn.2d 289, 229 P.2d 335 (1951) ; Pulley v. Pacific Coca Cola Bottling Co., 68 Wash. Dec.2d 770, 415 P.2d 636 (1966). See ANNOT. 66 A.L.R. 1334 (1959). See also Allen v. Porter, 19 Wn.2d 503, 143 P.2d 328 (1943) ; and 2 JONES EVIDENCE § 442 (5th ed. 1958). 2 5 MEISENHOLDER, WASHINGTON PRACTICE 62 (1965). 3 64 Wn.2d 979, 395 P.2d 490 (1964).

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and things offered exclusively for illustrative purposes and ruled this evidence," . ..must not only be relevant and material in character to the ultimate facts sought to be demonstrated by their use, but additionally, must be supported by proof showing such evidence to be substantially like the real thing and substantially similar in operation and function to the object or contrivance in issue. If the proffered evidence does not meet this test it should be rejected. If this language can be extended to all forms of illustrative evidence, a higher degree of authentication than has previously been required would appear to be necessary to admit these exhibits. It is doubtful, however, that this strict requirement would apply in all instances, particularly civil cases. The Washington court has long recognized the value of illustrative evidence and has encouraged its use.' It is difficult to believe that the court intends to restrict this use even though the language in Gray would seem to so indicate. It has been suggested that evidence of this type is "so useful in giving clarity and interest to the spoken statement that no special control over their admission is needed beyond the requirement for all testimony that it be relevant." 6 This seems to be a correct view of the matter, leaving discretionary control in the trial court to prevent abuses in the administration of justice, especially where the objections raised as to admissibility of the exhibit go only to its weight. If the illustration is misleading in any way this can be brought out by cross-examination and the court can give the jury a cautionary instruction regarding any inaccuracies, and admonish them that the exhibit is admitted for illustrative purposes only. DRAWINGS AND ILLUSTRATIONS

Most trial lawyers believe that illustrations explaining oral testimony are essential for a complete understanding of the facts of a personal injury case. The admission of illustrations,7 such as schematic 4 State v. Gray, supra note 3, at 983, 395 P.2d at 492. 51Kelly v. Spokane, 83 Wash. 55, 145 Pac. 57 (1914) ; Moran Bros. Co. v. Snoqualmie Falls Power Co., 29 Wash. 292, 69 Pac. 759 (1902.); Toole v. Franklin Inv. Co., 158 Wash. 696, 291 Pac. 1101 (1930) ; Pulley v. Pacific Coca Cola Bottling Co., 68 Wash. Dec.2d 770, 415 P.2d 636 (1966). 6 McCoRMICK, EVIDENCE 386 (1954). McCormick indicates, however, that the trial judge's discretionary power may be necessary to prevent abuse of this technique. 7A distinction should be drawn between illustrative exhibits and those exhibits used as substantive evidence. Illustrative exhibits may be used to illustrate the testimony of a witness or aid the jury or judge in understanding testimony. Since the exhibits are used for illustrative purposes they do not have to be totally accurate and any inaccuracies can be pointed out. When using exhibits ,that are substantive evidence a higher degree of authentication is necessary, requiring preliminary testimony regarding the accuracy of the data upon which the exhibit is based. MCCORMICK, EVIDENCE § 180 (1954). For the Washington

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drawings by a traffic officer or rough medical drawings by a medical witness, frequently will be decided on the basis of (1) does the illustration assist the jury in understanding the case; or (2) does the illustration assist the witness in explaining his testimony. It has been the common practice of Washington courts to receive private or unofficial maps, diagrams, sketches and other illustrations for the purpose of giving a representation of objects and places which cannot otherwise be conveniently described by a witness, or as an aid to the jury or court in connection with the testimony of a witness. The general test to be applied in the case of illustrative exhibits is that the exhibit be "substantially like" the thing sought to be illustrated.' As an example of a technique that might be used to authenticate a medical illustration, the following has been suggested:' Q. Doctor, I will show you what has been marked plaintiff's Exhibit No. 1, for identification, and ask you what this represents. A.

This is a schematic drawing of the ligaments of the neck.

Q. A.

Is it reasonably accurate, anatomically speaking? Yes.

Q.

Does it show the area of the anatomy of the plaintiff we are concerned with in this case?

A.

Yes.

Q.

Will this drawing assist you in explaining your testimony to the jury? Yes.

A. Q.

Your honor, plaintiff offers into evidence plaintiff's Exhibit No. 1 for illustrative purposes only.

The blackboard, another form of illustrative exhibit, which can often be used throughout the trial, is frequently an important courtroom aid. There are no formal rules regarding its use in the courtroom but writing on it is not considered as evidence, and its admiscourt's treatment of the distinction compare the following cases: Spokane v. Patterson, 46 Wash. 93, 98 Pac. 402 (1907) ; Ingersoll v. Olwell, 127 Wash. 276, 220 Pac. 755 (1923) ; Owens v. Seattle, 49 Wn.2d 187, 229 P.2d 560 (1956) ; San Juan County v. Hage, 54 Wn.2d 419, 341 P.2d 872 (1959) ; Hall v. King County Fire Dist. No. 43, 67 Wn.2d 446, 408 P.2d 14 (1965). 8 Franklin v. Engel, 34 Wash. 480, 76 Pac. 84 (1904) ; Spokane v. Patterson, 46 Wash. 93, 89 Pac. 402 (1908) ; Deitchler v. Ball, 99 Wash. 483, 170 Pac. 123 (1918) ; State v. Hunger, 18 Wash. 670, 52 Pac. 247 (1897) ; Ingersoll v. Olwell, 127 Wash. 276, 220 Pac. 755 (1923); Norton v. Anderson, 164 Wash. 55, 2 P.2d 266 (1931); Brown v. General Motors Corp., 67 Wn.2d 278, 407 P.2d 461 (1965). 93 AM. JUR. TRIALS § § 26, 27 and 9 AM. JuR. PROOF or FACTS 205-09.

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sibility is determined in the discretion of the trial judge." Since the admissibility of evidence through illustrations rests in the wide discretion of the trial court, the necessary degree of accuracy or quality of the reproduction should depend upon the purpose for which the exhibit is admitted. A rough representation of a scene conveying an impression, merely as an aid to a witness in explaining his testimony, will suffice in many instances." But when relative location, size, distance, shape, dimension, perspective or other details are significant, or when exact accuracy of detail in representation is essential, a high degree of authenticating" proof should be necessary. PHOTOGRAPHS AND X-RAYS

Photographs have long been used, where appropriate, to assist the jury in understanding the facts of the case. As early as 1914, the Washington court, in recognizing photographs as valid illustrative aids, said:1" We deem it pertinent, however, to say that the practice of admitting photographs and models in evidence in all proper cases should be encouraged. Such evidence usually clarifies some issue and gives the jury and the court a clearer comprehension of the physical facts than can be obtained from the testimony of witnesses.

Although it has been held reversible error to exclude a photograph which gives a fair representation of physical conditions material to the issues involved, 4 the admission or rejection of this evidence is also within the discretion of the trial court, 1' and will rarely be disturbed. The authentication requirements of photographs, while liberal, appear indefinite.16 The photographer is not required to authenticate 10 See 5 MEISENHOLDER, WASHINGTON PRACTICE § 33 (1965) for a complete discussion concerning the use of blackboards in the courtroom. " Ingersoll v. Olwell, 127 Wash. 276, 220 Pac. 755 (1923) ; Owens v. Seattle, 49 Wn.2d 187, 229 P.2d 560 (1956) ; San Juan Co. v. Hage, 54 Wn.2d 419, 341 P.2d 872 (1959) ; Hall v. King Co. Fire Dist. No. 43, 67 Wn.2d 446, 408 P.2d 14 (1965). See also 2 JONES, EviDENCE § 458 (5th ed. 1958) ; ANNOT., 9 A.L.R.2d 1044, 1081 (1950). 12 The word "authentication" is used throughout this article in its broadest sense and means that testimony required to lay a foundation for the admission of evidence under discussion. For a discussion of the precise meaning of the term see McCoRMICK, EVIDENCE

ch. 22 (1954). 13Kelly v. Spokane, 83 Wash. 55, 58, 145 Pac. 57, 58 (1914). 14 Washington v. Seattle, 170 Wash. 371, 16 P.2d 597 (1932). 15 State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961). See also McCoRMICK, EVIDENCE

§ § 180-81 (1954) and Kelly v. Spokane, supra note 13. 165 MEISENHOLDER, WASHINGTON PRACTICE 50 (1965). See also § 32 of that volume for a general discussion of this area.

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his own photographs17 but the witness who does the authenticating must be able to relate where, when and under what circumstances the photograph was taken, and that it is accurate." Thus, where the plaintiff testified that the photographs were a "reasonable representation of the ordinary daily conditions under which he worked" such testimony was deemed sufficiently identified to admit them into evidence. 9 A photograph which portrays a view differing from the condition existing at the time of an accident has been held admissible, since the differences generally affect the weight and not the admissibility of the evidence."' Neither the possibility of influencing the jury or generating prejudice,2 nor the gruesome or unpleasant nature of the photograph22 is sufficient to render an otherwise competent photograph inadmissible, and photographs taken in the morgue of a murder's victims showing the extent of their wounds have been held admissible. 3 An example of a technique that might be used to introduce photographs is as follows: Q. Q. Q.

Handing you what has been marked Plaintiff's Exhibit No. 1, for identification, can you tell us what this represents? Are you familiar with the scene represented in this photograph? Can you tell us whether or not the photograph is a true and correct representation of what it purports to be?

Colored slides,24 as well as motion pictures," are considered proper evidentiary aids, and the Washington court has allowed a witness to mark on a photograph with a red pencil to show the area of injury referred to in his testimony.26 Of all types of demonstrative evidence available to trial lawyers, photographs are the least expensive and usually the easiest to obtain. The judicious use of photographs can save much time in the trial and 17 State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1951) ; State v. Hardamon, 29 Wn.2d 182, 186 P.2d 634 (1947). 18 Ibid. 19 Kelly v. Great Northern Ry. Co., 59 Wn.2d 894, 899, 371 P.2d 528, 531 (1962). 20Owens v. Anderson, 58 Wn.2d 448, 364 P.2d 14 (1961) ; State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961) ; Kelly v. Great Northern Ry. Co., 59 Wn.2d 894, 371 P.2d 258 (1962); Mazon v. Druxman, 68 Wash. Dec.2d 695, 415 P.2d 86 (1966). 21 State v. Nyland, 47 Wn.2d 240, 287 P.2d 345 (1955). 22 Mason v. Bon Marche Corp., 64 Wn.2d 177, 390 P.2d 997 (1964). 2 State v. Nyland, supra note 21. 24 State v. Little, supra note 15; ANNOT., 73 A.L.R.2d 769 (1960). 25 Roberts v. Goerig, 68 Wash. Dec.2d 416, 413 P.2d 626 (1966). 26 State v. Hedin, 67 Wn.2d 542, 408 P.2d 245 (1965).

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often explain facts to the jury more clearly than could oral testimony. Trial lawyers and courts have liberally applied the Washington court's rulings which encourage the use of photographs,27 and since there are few personal injury cases in which a proper photograph would not be helpful to both the court and jury, the adoption of this liberal view can only aid in a clearer understanding of the facts of a case. Since 1901 the Washington court has deemed X-rays admissible if properly authenticated." Because of the technical nature of X-ray photography and since the X-ray itself does not furnish a means of identifying the subject, the authenticating testimony identifying the subject can only be supplied by a qualified person.29 Similarly, the interpretation of what an X-ray reveals about the subject matter normally calls for expert testimony. 0 In Washington, a chiropractor has been held to be a qualified person, competent to interpret X-ray pictures, and the court adopted3 ' the language of an earlier Massachusetts case which states :32 It is plain that knowledge of the human anatomy may be acquired to a high degree from a student of that subject, although such person is neither licensed nor registered as a doctor of medicine; and it is equally clear, as a matter of common knowledge, that in many professions, other than medicine, the use of the X-ray is familiar, and that it is read in connection with human anatomy. Although the court requires proof that the X-ray in question is of the person, anatomical part, or object lodged in the anatomy which it purports to be, and that it is a true representation of the subject X-rayed, 3 it has held that there should be no distinction made between an X-ray and a common photograph as to admissibility once the X-ray has been properly authenticated.3 4 The Washington court has stated that a witness who identifies an X-ray need not have taken the X-ray picture himself if the witness was present at the time it was taken, saw the film removed from the 27

See note 5 and cited cases.

28 Miller v. Dumon, 24 Wash. 648, 64 Pac. 804 (1901). See also Engler v. Woodman, 54

Wn.2d 360, 340 P.2d 563 (1959). 29Ibid. See also Vale v. Campbell, 123 Or. 632, 263 Pac. 400 (1928) for the Oregon court's treatment of the area. 30 Miller v. Dunon, supra note 28. See also ANNOT., 5 A.L.R.3d 342 (1966). 31 Manos v. James, 7 Wn.2d 695, 710, 110 P.2d 877, 894 (1941), overruled on another point in Poutre v. Saunder, 19 Wn.2d 561, 143 P.2d 554 (1943). 32Whipple v. Grandchamp, 261 Mass. 40, 158 N.E. 270, 273 (1927). See ANNOT., 57 A.L.R. 974 (1928). 33 Miller v. Dumon, supra note 28 and 5 A.L.R.3d 303, 307 (1966). 34 Ibid.

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machine and placed an identifying legend on it immediately after processing."5 There are two common situations that exist which can create problems concerning the proper identification of X-rays and their admission into evidence. In the first situation, the physician or surgeon does not take the X-ray and has delegated the task to a technician who is under his general supervision in the office. The second situation involves a physician, who, lacking office X-ray facilities, sends the patient to a radiologist, and the radiologist sends the films and his interpretation of them to the physician. Although there appear to be no Washington cases concerned with these precise situations, several jurisdictions allow the doctor in the first situation to testify about the X-ray's authenticity, correctness, accuracy and identity.36 This rule of authentication has some indirect support in this state. 7 In the second example, calling a physician to authenticate the X-ray when he was not present while it was taken by the radiologist appears to be insufficient identification,38 and prudent counsel will authenticate the X-ray through the radiologist. In a recent Washington case,39 an analogous situation arose where a physician took a vaginal smear and delivered the slide to a nurse who took it to a laboratory and the laboratory supplied the physician with a report. The court held that since the slide examined by the technician contained no identifying marks and was handled by at least one other person before the physician received it, the trial court properly refused to allow testimony regarding the results of the test. An example of how one might identify an X-ray would be as follows: Q. Handing you what has been marked plaintiff's Exhibit No. 1, for identification, what does this represent? Q. Was this X-ray taken in your office under your supervision, direction and control? Q. Can you tell us whether or not this is a reasonable representation of that part of the anatomy it portrays? Many attorneys use positive prints made from X-ray film because it is often difficult for the jury to see the X-ray film in a view box. 35 Manos v. James, supra note 31. 36 ANNrOT., 5 A.L.R.3d 303, 346 (1966). 37 Miller v. Dumon, supra note 28. Cf. Engler v. Woodman, 54 Wn.2d 360, 340 P.2d 536 (1959) where the doctor's testimony, regarding appellant's visual fields, was based upon his analysis of his office record prepared by his technician. 38 State v. Heffernan, 59 Wn.2d 413, 367 P.2d 848 (1962). 39 Ibid.

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There is no reason why these prints should not be admissible if properly authenticated. A comparison X-ray will frequently be helpful to the jury in understanding the nature of an injury. For instance, where plaintiff sustained a fractured kneecap, the court properly admitted into evidence an X-ray picture of a broken knee of another person, showing an injury the defendant contended was more severe than that which the plaintiff had sustained.' It follows from this decision that the Washington court may admit in evidence X-rays of the plaintiff, or some other person, which show a normal portion of the same anatomy which the plaintiff had injured, for comparison and illustration. MORTALITY TABLES In Lofgren v. Seventh Day Adventists,4 the Washington court adopted the opinion set forth in DeKnoning v. Williams,42 and held that where there is evidence of either (a) a permanent injury, (b) future loss of earnings, or (c) future pain and suffering, evidence of life expectancy of the injured plaintiff is admissible. The court has also suggested that the mortality table, published by the insurance commission pursuant to statute,43 be used by the courts in guiding juries through the uncertainties of life expectancy, 44 and courts may also take judicial notice of mortality tables.45 Mortality tables are merely a guide to aid the jury and do not determine any one person's life span. 46 They are admissible even though the plaintiff is not an insurable risk, has less than average good health,47 or has no earning ability.' Furthermore, these tables are not inadmissible simply because the jury may find other considerations which reduce or destroy the value of the tables as evidence.49 An instruction regarding life expectancy is proper when the extent of impairment to the plaintiff's earning capacity is highly uncertain, Norland v. Peterson, 169 Wash. 380, 13 P.2d 483 (1932). Lofgren v. Western Washington Corp. of Seventh Day Adventists, 65 Wn.2d 114, 147, 396 P.2d 139, 141 (1964). Although a requested instruction on life expectancy should be given in a case where plaintiff is permanently injured, a refusal to give such instruction is not necessarily prejudicial error and requires a new trial. 42 47 Wn.2d 139, 142, 286 P.2d 694, 696 (1955). 40

41

43 WASH. REv. CODE § 48.02.160 (1947). 44 Bradshaw v. Seattle, 43 Wn.2d 766, 264 P.2d 265 (1953). 45 Roalsen v. Oregon Stevedoring Co., 147 Wash. 672, 267 Pac. 433 (1928) ; Cox v. Datson Logging Co., 18 Wn.2d 49, 138 P.2d 169 (1943). 46 .Bradshaw v. Seattle, supra note 44. 47 Dixon v. Haynes, 146 Wash. 163, 262 Pac. 119 (1927). 48 Franklin v. Northern Life Ins. Co., 4 Wn.2d 541, 564, 104 P.2d 310, 320 (1940). 49Id. at 564, 104 P.2d at 320.

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and where, due to the nature and gravity of the injury, the jury could reasonably conclude that the plaintiff's earning capacity will be affected."0 The court has further stated that evidence that the injured plaintiff was not free from pain at the time of trial, coupled with continued pain and suffering from the date of injury to time of trial, was sufficient to justify an instruction on life expectancy." The common practice is to propose an instruction on life expectancy based on the mortality table, asking the court to take judicial notice of the table, and once such notice is taken it is not necessary to introduce further testimony regarding the mortality table. 2 HOSPITAL RECORDS It is frequently good practice to introduce into evidence the injured plaintiff's hospital records, especially when his injuries are serious. The admission of this documentary evidence is governed largely by the Uniform Business Records as Evidence Act,53 which provides that "a record of an act, condition or event shall, in so far as relevant, be competent evidence" if certain authenticating procedures first take place. 4 The Act created an exception to the hearsay rule, and was adopted to avoid the necessity of calling the many witnesses who may have had a part in compiling the record. For authentication purposes, it is only necessary to call as a witness the person whose duty it is to maintain custody of the record or who supervised its creation." The trial judge's ruling concerning the admission or exclusion of hospital records is given great weight and will not be overturned unless there is a clear showing of a manifest abuse of discretion.57 The Act does not automatically make all material contained in such records admissible.58 The Washington court has declared that a medical opinion on causation, which is not a result of an observed 50 Sherman v. Seattle, 57 Wn.2d 233, 356 P.2d 316 (1960). 51 Thompson v. Seattle, 35 Wn.2d 124, 211 P.2d 500 (1949). See also supra note 41 and

language therein. 52 Roalsen v. Oregon Stevedoring Co., supra note 45. See also Piland v. Yakima Motor Coach Co., 162 Wash. 456, 298 Pac. 419 (1931) ; 5 MEISENHOLDER, WASHINGTON PRACTICE

§ 590 (1965). 53 WASH. REV. CODE § § 5.45.010-920 (1947).

54 WASH. REV. CODE § 5.45.020 (1947). 55 Young v. Liddington, 50 Wn.2d 78, 309 P.2d 761 (1957). See also 33 WASH. L. REV. 158 (1955). 56 Cantrill v. American Mail Line, 42 Wn.2d 590, 257 P.2d 179 (1953). 57 Ibid. 58 Allen v. Fish, 64 Wn.2d 665, 393 P.2d 621 (1964) ; Benjamin v. Havens, Inc., 60 Wn.2d 196, 373 P.2d 109 (1962).

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act, condition or event, cannot be established by a business record,59 and therefore a medical report containing a physician's conclusion is inadmissible for proving conclusions relative to causation. 0 Reports of this kind are inadmissible because the Act was not adopted to permit evidence of the recorder's opinion upon which other persons qualified to make the same opinion might have differed.61 The law pertaining to the admission of written reports of doctors contained in hospital records is still in a state of evolution and confusion. It remains unsettled whether a medical opinion as to causation, which is the result of an observed act, condition or event, can be established by a business record. Although at least two opportunities to clarify this problem have been presented to the court, it has not done so.6" Although the Business Records Act was adopted in part to avoid the necessity of calling numerous witnesses, it would seem unfair to allow medical opinions, as opposed to factual findings of doctors, to be admitted through hospital records. The nature and extent of the injuries sustained is one of the most important issues in personal injury litigation' and the opportunity of crossexamination is of prime importance in this regard. A hospital record may still be admissible when it shows the patient's medical history as related to his examining physician.64 Portions of a hospital record made before the accident in question, relating to the plaintiff's physical condition at that time, are also admissible to show that the plaintiff was afflicted with prior injuries.65 On the other hand, hospital records are not necessarily admissible to corroborate testimony of a patient where such testimony has not been contradicted.6 6 The Washington court has indicated67 that the proper procedure for counsel to follow in objecting to hospital records is to object to the portions of the records he deems inadmissible and to point out, specifically, the objectionable portion, thus giving the trial court an opportunity to pass on the question at the time the record is offered 59 Young v. Liddington, supra note 55. 60 Liljeblom v. Dept. Labor & Industries, 57 Wn.2d 136, 356 P.2d 307 (1960). 61 Ibid. 62 Kerr v. Cochran, 65 Wn.2d 211, 397 P.2d 642 (1964) ; Allen v. Fish, supra note 58. 63 However, it has been suggested that the degree of evidence required in an industrial insurance case should be less than that required in personal injury litigation not within the industrial insurance law. 36 WAsh. L. REv. 217 (1961). 64 Barracliff v. Maritime Overseas Corp., 55 Wn.2d 695, 349 P.2d 1080 (1960). 65 Cantrill v. American Mail Line, supra note 56. 66 Choate v. Robertson, 31 Wn.2d 118, 195 P.2d 630 (1948). 67 Allen v. Fish, supra note 58, at 671, 393 P.2d at 624.

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in evidence. If this procedure is not followed, the trial court is not required to give the jury any cautionary instructions regarding the objectionable portions of the record. Frequently attorneys will stipulate that a deposition be taken from the medical records librarian to avoid the necessity of calling the witness at the time of trial. If this procedure is not followed, a witness, while authenticating hospital records might be asked the following questions: Q. Are you the medical records librarian and the authorized custodian of the hospital records? Q. Were the hospital records, produced pursuant to the subpoena duces tecum served upon you. compiled by the patient's treating physician, staff members and employees of the hospital? Q. Were the records prepared at or near the time of the condition, act or event recorded in the records, and were the records, kept and maintained by the hospital in the usual, normal and regular course of its business? A careful examination of hospital records should be made prior to offering them in evidence, to determine if they contain objectionable material, such as references to insurance or inadmissible opinions as to causation, which should first be deleted. Since one of the most effective methods of conveying to a jury the amount of pain and suffering the plaintiff has sustained is a hospital chart, an attorney who handles personal injury cases should be familiar with hospital records and usage. Inexpensive publications are available" to assist the trial attorney in acquiring knowledge in this area as well as publications by experienced lawyers."9 CONCLUSION As early as 1882, when the hat and coat belonging to Doctor Jack, an Indian charged with homicide, was admitted into evidence," the Washington court has commented favorably upon the use of demonstrative evidence. In fact, demonstrative evidence has been used here and abroad for over a century. Speaking of demonstrative evidence, one court stated :72 It is said its great value lies in the human factor of understanding 68Law Notes, A.B.A. SECTION OF GENERAL PRACTICE AND YOUNG LAWYERS, Averbach, The Anatomy of a PersonalInjury Law Suit, January, 1965. 69 For example, see 6 AVERBACH, HANDLING ACCIDENT CASES Ch. 97 (1958). 70 Doctor Jack v. Territory of Washington, 2 Wn. Terr. Rep. 101 (1882). 712 AVERBACH, HANDLING ACCIDENT CASES 2:97 (1958). 72 Smith v. Ohio Oil Co., 10 111.App.2d 62, 134 N.E.2d 526, 530 (1956).

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between what is seen than what is heard. Wigmore favors the use of any aid modern science may provide, to the end that the jury may have the best possible understanding of the matters it must decide.

It has often been said that "we learn or retain only thirty per cent of what we hear, only fifty per cent of what we see and seventy per cent of what we actually do." 3 Melvin M. Belli, in his work Modern Trials,74 cites numerous examples of how demonstrative evidence can be employed in personal injury work. While there seems to be a prevalent belief that the use of demonstrative evidence is a recent innovation, actually the general use of demonstrative evidence is of ancient origin and has long had judicial recognition. The current interest in demonstrative evidence can be said to be a revival of a neglected art. The value of demonstrative evidence is shown in the shortening of trials and the dispelling of confusion in the minds of jurors concerning facts in controversy. Even the Washington supreme court employs demonstrative evidence for the purpose of shortening written opinions and clarifying decisions. The increasing number of photographs, diagrams and the like found in recent supreme court decisions witnesses this fact.76 Modern courtrooms in Washington are equipped with numerous mechanical aids such as blackboards, X-ray view boxes, projectors, paper, crayons and similar items designed for use as demonstrative evidence. Is this not an admission of the real value of such evidence by the judiciary? Since juries normally have no prior knowledge about the facts of the case, nor the anatomy of the injured plaintiff, the trial involves a learning process by twelve ordinary people. All proper aids should be employed in assisting the jury to understand the facts in issue so that a proper decision can be rendered. The former president of the American Bar Association, Charles S. Rhyne, in commenting on demonstrative evidence has said: 7 Diagrams, X-ray pictures, and careful explanation of modern medical

concepts are invaluable to a jury of laymen as aids in clarifying the 732 AVERBACH, HANDLING ACCIDENT CASES 74

2

BELLI MODERN TRIALS § §

2:100 (1958).

159-78 (1954).

75 JONES, EVIDENCE § 441 (5th ed. 1958) ; WIGMORE, EVIDENCE §§ 1150-69; Dolly, Demonstrative Evidence, Nothing New, 42 ILL. B.J. 136; Karlin, Patterns in Proof, 23 J.B.A. Van, 150 (1954). 76 See State v. Corvallis Sand & Gravel Co., 69 Wash. Dec.2d 24, 416 P.2d 675 (1966) City of Medina v. Cook, 69 Wash. Dec.2d 573, 418 P.2d 1020 (1966) ; Cowlitz v. Miller, 68 Wash. Dec.2d 633, 414 P.2d 795 (1966). 77 Rhyne, Medicine and the Legal Profession, 167 JOURNAL OF THE A.M.A., 1372, 1374 (July 1958)

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89

issues which must be resolved. It is impossible to accurately establish the extent of injury and the resulting damage without such evidence.

It therefore behooves every trial lawyer to examine each personal injury case to determine what kind of demonstrative evidence should be employed, and to use it intelligently and under proper circumstances. Technical objections going to the weight of the evidence rather than to its admissibility should not be a basis of excluding demonstrative evidence. The judicious and proper use of visual demonstrative aids is not only essential to successful advocacy

but also a valuable aid to the court and jury.