Over 2,300 years separated the lives of Greek philosopher Heraclitus and English poet Lord Tennyson, yet they both understood one thing: when it comes down to how people absorb, process, and retain information, the eyes have it.
Heraclitus and Tennyson "got it" - and thankfully, it appears that we who work in the litigation landscape of the 21st century have finally gotten it too. It wasn't all that long ago that the mere suggestion of making visual presentations an integral part of trial strategy was both a source of controversy, and a lot of sleepless nights.
But not any more. Oh, we still have those sleepless nights - some trial traditions are, after all, sacred. But today, in the year 2005, it is hard to imagine a trial of any kind without the substantial use of visual materials. Whether it is timelines, graphic illustrations, patent process animations, document presentation systems, or the ubiquitous PowerPoint slide show, trial lawyers are increasingly more dependent on, and confident in, the visual presentation of their cases.
It's about time. Because the truth is, we live in a visual world. We wake up in the morning and turn on CNN, beaming video and graphics to us from around the globe. We buy a copy of USA Today, which gives us the news via graphic illustration and photographs as much as it does through the printed word. We log on to the Internet, a streaming-video, graphics-saturated banquet of visual information, and we feed on it whenever, and wherever we please. Wherever we go, billboards tell us what to buy, bumper stickers tell us what to think, and road signs tell us where to go. And when we get there, the nightly news anchors tell us of the day's events, all with graphic images, animation, video, or photographs strategically perched over their left shoulder.
We are visual creatures living in a visual world. We think visually, we communicate visually, and - most important when it comes to the juror who must absorb, deliberate and decide - we learn visually. Skeptical? Consider the following:
Studies by educational researchers suggest that approximately 83% of human learning occurs visually, and the remaining 17% through the other senses.
Retention studies show that 3 days after an event, people retain 10% of what they heard from an oral presentation, 35% from a visual presentation, and 65% from a visual and oral presentation.
Research indicates a 70% increase in retention after 3 months when information is presented visually
How many trials last three months, you say? Actually, quite a few. And juries often deliberate for 3 days or longer, weighing the evidence they've heard - and seen - over the course of a trial, no matter how long the trial has taken.
So let's recognize and celebrate that visual presentations have not only arrived, but settled comfortably into the courtroom. Objections of the past have been overruled by years of experience, the jury is no longer out, the verdict is in, the case is closed.
The exception is now the norm - visual presentations are not only readily accepted, they are often encouraged by the courts as a way to simplify complex testimony, speed up the pace of trial, and ease the learning curve of both people sitting in the jury box, and judges sitting on the bench.
So, as the saying goes, "what's not to like?" Judges get speedier trials, jurors get information in an understandable, enlightening and often entertaining way, and litigators get a variety of powerful tools to present their case in a compelling and persuasive manner. Everybody wins, right? Well, maybeÉ
Because there is one slight problem that has come about as trial visual presentations have come of age. And that is, with the ever-growing smorgasbord of delights available to the trial lawyer of today - the increasingly flexible and facile trial presentation systems, the variety of powerful and persuasive media - there is, unfortunately, a tendency to overeat.
A little bit of this, a dollop of that, a pinch of the other, a taste of everything. And soon enough, the plate is filled to overflowing, everything runs together, and nothing stands out. And by the time you're done eating, you wish you'd never started.
Unfortunately, it happens in the courtroom. I've seen it happen. Trial teams become so enamored with the media, it is used for every point, every witness, everything. And over the course of a trial, as the jury is bombarded with image after image, day after day, use becomes overuse, and, ultimately, abuse of a great tool. Everything runs together, nothing stands out, and the jury ends up wishing it had never started.
Here's the problem: to paraphrase the legendary Marshall McLuhan, we are letting the medium become the message. We have become so good at using the tools available to us - the graphics, synchronized video depositions, 2D and 3D animations, PowerPoint slides - that we begin by focusing on how we're going to say something, rather than what it is we want to say.
And as we increasingly rely on these wonderful tools in the modern era of litigation, we increasingly run the risk of losing the most powerful tool of all. And that is the tool of good storytelling.
With all due respect to Mr. McLuhan, the medium is NOT the message. The message is the story we must tell to the jury in a way that enrolls them, engages them, moves them, and ultimately, persuades them. The story IS the case. It is not the voluminous testimony, thousands of data points, multiple fact patterns, and continuous expert witnesses. Obviously they are all necessary, and at times critical, to the trying of the case. But in the end, they are the skeleton on which the body of the case is shaped, the chapters in which the story of the case is told.
A good story told well, coupled with a well-designed presentation of the facts, issues and evidence, is an unbeatable combination. Chances are you are probably familiar with developing a presentation of your case; but what about telling your story? In over 20 years as a litigation consultant, I have come to the conclusion that a good story in the courtroom is no different than it was back in grade school: it has a beginning, a middle, and an end. Let's take a brief look at each one of them:
Beginning - How does a great story begin? Simple: it grabs your attention. It makes you want to keep turning the pages, to find out how the story will develop, what will happen. The opening statement in a trial serves the same purpose - it should make the jurors want to stay with you as the case unfolds. Here are some ways to make this happen:
Begin with a compelling statement, something that appeals to the jurors' innate sense of curiosity - "I am going to tell you things about Acme Corporation that you have never read in any newspaper;" "By the time this trial is over, your view of chemical companies will be completely different;" "in this case you are going to learn facts that will challenge you - here are just a few of them."
Incorporate compelling visual exhibits, rehearse the opening, revise it, rehearse it again, revise it, etc., until the images on screen seamlessly appear on cue to punctuate the key elements of the opening.
If possible, with authenticity, incorporate humor - it gives the jury permission to relax, and gives them a reason to like you and listen to you.
Brevity is a dying art; try to revive it. Yes, I know that every fact and every word is important, but probably not to the everyday people sitting in the jury box.
Middle - What's makes a good "middle" of a story? Once again, it's simple: it moves the story along . As you move from fact witness to fact witness and expert to expert, your story must unfold in an interesting manner, and above all, the jury must feel that progress is being made. Consider doing the following:
Truncate complex testimony with visually-enhanced tutorial style exhibits; give the jurors not just the facts they need, but the vocabulary they need to understand the facts.
Develop your story in a logical fashion, but also in a way that keeps jurors interested; know the temperament and "presence" of your witnesses, and try to feel how the jury will react to them. Dry testimony by a stiff (but necessary) witness does not need to be followed by same; remember, a good story usually has a variety of well developed characters.
Mix up the media as well as the testimony. I had a case where the first ten days of trial was videotaped depositions; after the first day or so, no one was paying attention, and a few were catching up on their sleep. Graphics, video, document treatments, Elmo, flip charts, animation, PowerPoints - there's plenty out there. Not all of them need to be used, but think how each can be used.
End - Ah, the end. After X weeks of trial, we're finally at the finish line. Just like the closing pages of a 300-page book, the closing summation must be logical, satisfying, and persuasive in pulling together the evidence. Think along these lines:
Do not laboriously repeat all of the evidence presented during trial; take key themes the jury received favorably, dress them back up (now you can use additional evidence presented during trial) and refresh the jury's recollection - and their appreciation.
Develop visuals based on trial testimony (see above) - how many stories have you read where a secondary character comes back at the end to play a major role? Tip: have your trial consultant and/or team member take notes on possible closing exhibits from the opening onward - you won't regret it.
Don't forget that jurors are people too; appeal to their emotions, their sense of loyalty, dedication, fairness, responsibility, and integrity - end your case the way a good book ends: making you think, and making you care, even after the last page has been closed and the story has been told.
Published December 1, 2005.