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

As I pointed out in my last post, the oral telling of a story must be accompanied by visuals if it is to be fully effective. Studies show that most (reportedly as high as 61-65%) of the public prefers to learn by seeing and watching. The majority of attorneys, on the other hand, do not prefer to learn this way but are auditory and kinesthetic learners: They typically learn by hearing and/or experiencing something.

This makes sense, when you think about it: We all learn this way in law school in class lectures, and we continue to learn this way as practicing attorneys by experiencing litigation. However, most people (e.g., jurors) do most of their “learning” watching television or surfing the internet.

I believe that these learning preferences are solidly based in evolution. Humans evolved from animals that had to rely on visual learning because, socially, there was a lot more to see and less ability to orally explain things to one another. Our ancestors saw what foods to collect and eat, they saw their neighbors catch a fish, they saw their father hide from a carnivore, and they learned how to live and survive to reproduce, and this visual learning style was evolutionally reinforced. I think that, unless a human is forced into a situation where he or she must hone the ability to learn by hearing a lecture, he or she will more easily learn by seeing something and relying on a person’s much stronger visual capabilities.

No matter how intelligent a person is, he or she will typically teach the same way that he or she prefers to learn. Visual learners teach by illustrating. Auditory learners teach by explaining. So, left to our own devices, we attorneys will usually teach by giving a lecture. However, there is a big problem with this in a courtroom.

Chances are that most of our jurors are visual learners, and if we try to teach them in the way most comfortable us, by giving a lecture, we’re not being as persuasive as we could be. The jurors simply will not get our points or case as well as they could.

How do you bridge the communications gap? By storytelling, as discussed in this series of articles, and with effective trial graphics. This will enable you to teach and argue from your comfort zone - by lecturing - but the trial graphics will provide the jurors what they need to really understand (or feel they understand) what you’re saying and give them a chance to agree with you. 

Research shows that visual support is an essential persuasion tool in litigation. By conducting two different studies, each having four groups of jurors (totaling about 500 subjects), researchers tested the persuasiveness and impact of opening statements in an employment discrimination case. One group of jurors saw no graphics, one group saw graphics with plaintiff’s opening, one group saw graphics with defendant’s opening, and one group saw graphics with each opening. This was done twice, for four eight total groups.

The results of this testing established not only that graphics make an argument stronger; it made jurors feel that the attorney using them was more competent, more credible, and probably more likable. The jurors retained the information better, and the result was improved verdicts for the graphics users. When plaintiff used demonstrative graphics, the defendant was seen as more liable. When the defendant used graphics, it was seen as less liable in the jurors’ eyes.

Another study by a litigation and jury consultant, Dr. Ken Broda-Bahm, investigated the effectiveness of various communication techniques, specifically as they relate to jurors.

Interestingly, this study found that there really wasn’t much difference in effectiveness when comparing techniques using:

• no trial graphics,
• simple flipcharts,
• static and sporadically shown trial graphics, and
• animated and sporadically shown trial graphics. 

This result was surprising to Broda-Bahm, and to me reading his published work. However, his study went further and found that when the “jurors” were immersed in graphics, meaning that the attorney always gave them something to see while presenting his argument, the effectiveness and persuasiveness of the presentation dramatically increased.

The bottom line is that you must use visual support to accompany your trial argument and testimony. This can take many forms, such as trial graphics, scale models, poster boards, and electronic display of evidence. Furthermore, the presentation of visual support during litigation must be an immersive experience for the jurors. So unless there is a very good reason to turn off the visual display to have the jurors focus on your face, you should be giving them something to look at.

Other trial graphics related articles and resources on A2L Consulting's site:

• Submit a conflicts check related to a trial graphics need
• Free Webinar: How to Use PowerPoint Trial Graphics for a Win
• Download: Using Trial Graphics in the Best Way Possible
• New Study: A Graphically Immersive Trial Presentation Works Best
• 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
• 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere)
• 6 Studies That Support Litigation Graphics in Courtroom Presentations
• Why reading PowerPoint litigation graphics slides hurts your trial presentation's effectiveness
• Why shouldn't I just make my own PowerPoint slides?
• 5 Problems with Trial Graphics
• 12 Questions to Ask When Hiring a Trial Graphics Consultant
• Why Trial Tech ≠ Litigation Graphics
• 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck
• 7 Questions Will Save You Money with Litigation Graphics Consultants
• 16 Litigation Graphics Lessons for Mid-Sized Law Firms
• 7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise
• Download: The Role and Value of Litigation Consultants Explained