by Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

A recent study by University of Arizona doctoral student, Jay Sanguinetti, found that people’s brains perceive objects and images in everyday life that we are not consciously aware of.  Even if you never actually know you see something, your brain can “see” it and process the related visual information. Here’s an example from the University’s study to the right:

When test subjects (that means human beings) were asked to look at abstract black silhouettes, their brains also perceived the real-world objects hidden in the negative space at the image border. Here, your brain perceives two seahorses, just as the test subjects’ brains did during the experiment, even though there are no seahorses in the graphic.

Now, how can this be applied or abused in the courtroom? Well, I cannot give you a definitive answer, but I believe that if your brain is seeing seahorses in the image to the right, and if your subconscious has associated a certain emotion with seahorses, then that emotion will likely be evoked when you see the image above, even without you realizing it.  So, at trial, such a phenomenon might be applied or abused when designing trial graphics to evoke a specific emotion from jurors (or judges).

What emotions might help one win at trial? Well, for example, if the argument is that your client shouldn’t be punished for a simple mistake, it would make sense to evoke sympathy in jurors when making this argument.  If reason alone is not enough to do this, one could appeal to jurors’ subconscious. What do you see in the image to the left?

In my extension of the University’s experiment, what you might consciously perceive here (at left) as a simple and abstract design choice and message: “Don’t Punish My Client,” your brain likely perceives as two babies bookending the message.  The question then becomes, did you recognize any emotional response in yourself when looking at the graphic?  If you felt inclined toward sympathy for my hypothetical client, why?  There’s nothing really persuasive in the graphic other than my simple request in text. 

If the baby bookends didn’t persuade you, how about the graphic to the right?  Do the unseen, yet subconsciously perceived puppies make your heart melt for my imaginary client?  Hard to say. 

What other emotions might help a litigator persuade jurors?  What about evoking anger against the opposing party?  How about evoking incredulity in relation to the opposition’s damages demands?  If the emotion fits, it can help you win because most jurors make their decisions based on emotions rather than reason or even evidence.

I imagine it would take more than these simple subliminal inputs to get the result I’m going for here, but I think we should all pay attention to this type of science.  When the facts are tough, a client is starting with a sympathy deficit with a jury, or counsel is looking for some edge for their case, anything is possible.  So, pay attention to your opponent’s trial graphics because even abstract shapes might be an attempt to sway emotions. On the other hand, when designing your own trial graphics, realize there’s more to it that making sure the right dates are on your timeline.

Other articles on A2L Consulting's site related to trial graphics, demonstrative evidence and litigation graphics consulting:

• Trial graphics tricks to watch out for
• 5 Problems with trial graphics
• FREE E-BOOK DOWNLOAD: Using Trial Graphics to Prevail at Trial
• Overcome bias with this trial graphics font trick
• How pictures are increasingly influencing you