The Litigation Consulting Report

Like the well-known character Pinocchio, some lawyers and their trial graphics experts are not always truthful. Unfortunately, their noses don't grow to reveal their deceit, so it's up to you to identify when they're being dishonest. This article aims to equip you with the tools to do just that—spot those who mislead with charts and trial graphics and, ideally, expose them in court. Alternatively, you could hire Persuadius to save time and energy, allowing you to focus on what you excel at. Clarity and accuracy are crucial in a court of law, but trial graphics can be manipulated to distort the truth. Misleading charts and visual data presentations are often used to sway the judgment of judges and jurors, making it essential for legal professionals to be vigilant. Here are the top 10 tactics your opponent might use to mislead the judge and jury through trial graphics trickery, and how you can spot them. 1. Misleading Scales and Axes on Trial Graphics One of the most common tricks in chart manipulation involves altering the scales and axes. By stretching or compressing the y-axis, a slight difference in data can appear much larger or smaller than it actually is. For instance, a bar chart with a truncated y-axis (which doesn't start at zero) can make minor differences appear significant. Alternatively, using non-uniform intervals on the axes can distort the perception of trends, making data points look disproportionately close or far apart. Below, the creators of this chart wanted to create the impression that iOS has more market than Android. That's not true. I don't understand why, but it's not true. They achieve this by leaving off the bottom 75% of data and indicating that Android holds 85% (at least according to this chart) of the market. The actual numbers are roughly 71% (Android) versus 28% (iOS). Defensive Tip: Always check if the scale is consistent and fair. A quick glance at the axis values and intervals can reveal if something is amiss.

PowerPoint does funny things to people. For some, it is an amazingly accessible creative space to deliver important messages powerfully and persuasively (see Wait, Why is Powerpoint Cool Now). For others, it is a place to advertise how little they know about persuasion science. Think of this article as a fun challenge reminiscent of the games found on cereal boxes from your childhood. Your task: spot the persuasion-killing mistakes on the slide above, then compare them to the ones I've highlighted below. I've already embedded numerous persuasion pitfalls in the text, making it easier for you to identify them. Let's see how many you can uncover and elevate your persuasion game. Hopefully, this slide doesn't resemble your Trial Graphics/Litigation Graphics. If it does, you should contact me or press the request conflicts check button in the corner. In any case, I hope this article helps you and helps elevate the art of persuasion.

by Tony Klapper Managing Director, Litigation Consulting A2L Consulting War rooms at trial are very intense, high-pressure places. Obviously, the lawyers in the trial team are going to make the war room their “office” for the duration of the trial, as will other team members such as paralegals and consultants. Here are five reasons why a trial team should always consider having a graphic artist on site, right beside the attorneys. If an artist is not there, side by side with the lawyers, the team will lose a certain amount of flexibility and responsiveness. If a lawyer wants a visual to be slightly modified, based on testimony that’s just now being heard, there’s nothing like having someone by her side to share thoughts with. The response can be immediate and in real time. Communication between the lawyer and the litigation graphics artist is much easier to achieve. If the artist is not there, miscommunications can creep in like a child’s game of “telephone.” A lawyer can show an artist on site exactly what she means because the artist is able to see and hear the lawyer, not just read an email or listen on the phone.

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

by Ken Lopez Founder/CEO A2L Consulting

by Ken Lopez Founder/CEO A2L Consulting We at A2L Consulting have just published a new, completely free, e-book that anyone who’s interested in trials and litigation should have. No more comprehensive volume on litigation graphics exists, at any price.

by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting As a litigation consultant, one of my primary responsibilities is to help litigation teams develop and effectively use demonstrative evidence to support their trial presentation. The primary means of doing this is to create litigation graphics, which are most commonly used as PowerPoint slides that accompany oral argument and witness testimony.

Whether a $5 million trial or litigation involving hundreds of billions of dollars, Persuadius (formerly A2L) almost always uses document call-out trial exhibits as part of its trial presentation. They are a time-tested and effective tool for highlighting key portions of a document in evidence. Sometimes, these call-outs are done on the fly by the Trial Director by our on-site trial technicians, and sometimes, these are created using PowerPoint. Regardless of the tool used, care should be taken to consider the most persuasive design for the point a litigator is trying to make. All too often, stock designs that highlight black text in electronic yellow highlighter or faux-torn paper tear-outs are used to emphasize key text. Sometimes, these approaches are adequate. Other times, you are missing out on a key opportunity to persuade. Persuadius (formerly A2L) was hired by The U.S. Department of Justice to produce a group of trial exhibits to defend against injury claims in a rescue helicopter landing. One key case theme required us to emphasize that it was the duty of the hospital to stop traffic rather than anyone on the helicopter or at air traffic control. We arranged the key call-out language inside a stop sign shape to make this point. When combined with emphasis by the litigator, I believe the message of "STOP" was unforgettable. Articles related to practice, trial preparation and trial presentation that you may also like include:

Below is an article authored by a Senior Litigation Graphics Consultant at A2L Consulting. It is set for publication in PLI's Trial by Jury book. I think it does a great job of introducing the challenge of balancing color choice and culture in trial graphics. ******** Color Choice, Culture and Demonstrative Evidence -Theresa D’Amico Villanueva, Esq. About the Author:Theresa D’Amico Villanueva is a Senior Litigation Consultant for A2L Consulting, an attorney owned and operated provider of litigation consulting, graphics and courtroom animations, and litigation technology for litigators from all of the world’s largest law firms. Prior to her tenure as a litigation consultant, Ms. Villanueva worked as an attorney focusing on discovery for MDL and international products liability and toxic tort matters, and as in-house counsel handling title insurance claims, settlements and compliance with multi-state regulations. Ms. Villanueva holds a B.S. in Textiles and Apparel Merchandising and Design, with a business minor from West Virginia University. She received her Juris Doctor from Capital University Law School, where she was awarded Order of the Barrister. She is a member of the Pennsylvania Bar. For further information, please contact Ms. Villanueva at 800.337.7697 x 115 or via email at: villanueva@A2LC.com Introduction It is long established that the use of visuals and technology in the courtroom increases understanding and retention. There are many attorneys across the country who will not even consider going to trial without being armed with creative and intuitive demonstrative exhibits to persuade and educate the jury. Color is a fundamental component of creating and developing trial graphics. Many litigators, however, still use conventional color schemes in their demonstratives. Their reluctance to change is likely because at some point the conventional wisdom became using a blue background with yellow text. Although this color scheme does work, it is no longer enough. Like an antibiotic, if it is overused, it loses its effectiveness. Similarly, this color scheme has lost its impact. As jury pools diversify, and as jurors become more sophisticated, they expect more from us. In turn, we need to become more creative if we intend to persuade our audience. We need to make our graphics relevant to those whom we are trying to persuade. We must truly consider our audience, who they are, where they live, and the environmental and cultural factors that influence their behavior, attitudes, and perceptions. Color is powerful. Studies show that color can evoke certain emotional responses: it can increase learning, grab our attention, and increase perception and focus. The right color choice, used in the right way, can influence and tilt the case in your favor. The Audience Many label Edward Tufte as the “Galileo of Graphics” and the “Leonardo da Vinci of Data.” His writings on graphics and presenting are among—if not the—most prominent of our day in regard to communicating visually to an audience. While his works do not directly relate to courtroom presentation, his ideas and theory of how to appeal to an audience are highly regarded; the underlying theme of his ideas is directly applicable to litigation presentations. According to Tufte, “The most important rule of speaking is to respect your audience.” This is certainly true when addressing a jury. Tufte argues that advocates should communicate with an audience in a clear and organized way: “Presentations largely stand or fall on the quality, relevance, and integrity of the content.” Organizing a case’s information and specifics in a clear way is not always an easy task. Furthermore, advocates also face the challenge of communicating in a way that will entice and intrigue our audience so as to keep their attention. There is a limited amount of time that we have the undivided attention of the jurors to present the facts. We need to use that time wisely and in a way that will keep the attention of our audience. Jurors today have high expectations when walking into a courtroom. Despite a jury’s expectation of technology and graphics to keep their attention, cluttering the screen with colorful—but ultimately not meaningful—graphics will likely alienate the jury. Whether verbal or visual, useless information is more likely to disengage the audience than it is to draw them in. In fact, too much information can detract from the message at hand. Once you have lost the attention of the jury, it is difficult to regain it; vital information is lost. Tufte advocates a direct presentation where the visuals supplement, rather than dominate, the presentation. Bright and even animated words on the page are not automatically relevant. Rather, a presentation is persuasive when it contains succinct and understandable arguments backed by the demonstratives that accompany the presentation. Thus, the colors and content of the visuals that you choose to represent your themes and case facts are an important factor in the development of your graphic exhibits. The use of technology and demonstratives in the courtroom is not only an integral part of a litigator’s arsenal of support, but also expected by most jurors. The modern fact finder expects much from the trial team when they walk into the jury box. We can attribute this in part to the ability of demonstratives to help the jurors understand the specifics of the case. This is also due to the ever growing use of technology in today’s television shows and their portrayal of the legal process. Television shows like Bones, C.S.I., and Law & Order give prospective jurors the impression that the intuitive officer easily solves a case with fancy technology and insightful comments. On television, viewers watch attorneys recreate the scene with computer images and simulations at trial. While these shows may depict more of the criminal legal process than the civil side of litigation, the expectation of drama and glamour in the courtroom remains. Thus, the legal profession faces the challenge of reaching its audience—the fact finders—in a way that will meet their expectations, hold their attention, and speak to the person as an individual. Jurors have high expectations. The use of graphics and technology has evolved such that we need to look for new and innovative ways to reach jurors. We know that repetition via auditory and visual techniques increases retention and comprehension. We are both visual and auditory learners. Studies show that jurors retain more information when they see and hear the evidence. One particularly well-known study—the Weiss-McGrath report—found "a one-hundred percent increase in juror retention of visual over oral presentations and a six-hundred percent increase in juror retention of combined visual and oral presentations over oral presentations alone." The report also showed that subjects who only heard information had a seventy percent retention rate after three hours and only a ten percent retention rate after 72 hours. Likewise, in subjects who only saw information there was a 72 percent retention rate after three hours and a twenty percent retention rate after 72 hours. However, when you compare these results to the results of the subjects who both saw and heard the same information, there was an 85 percent retention rate after three hours and a 65 retention rate after 72 hours. Retention is good. We want our jurors to remember our argument, and deliberate over our words. We also want to be able to reach the fact finder on a deeper subconscious level that melds with their understanding and perceptions in a way that persuades them to reach the conclusion we are seeking through our presentation. Color is an effective avenue for achieving this level of understanding.