The Litigation Consulting Report

Finally. High-quality litigation graphics made an appearance at the impeachment trial. If you are a trial lawyer or you help trial lawyers, this article is a must-read, because it will help you see the future and help you persuade better. I've published three recent articles about the impeachment hearings/trial and the litigation graphics and technology used: 5 Litigation Graphics Lessons from the Impeachment Hearings Who Won the Impeachment Trial Initial Opening Statements? Impeachment Hearings Provide Trial Technology Lessons I thought those three articles would be my last on the subject, and then something impressive happened. Objectively effective litigation graphics were (finally) used on Day 6, and they offer a look into the future for all trial lawyers. The first five days of the impeachment trial left me feeling sad for those rare few of us who are experts in the art and science of litigation graphics. For the most part, the PowerPoints used were better than nothing but fell far short of maximizing persuasion (based on current persuasion science). They looked like what lawyers can create on their own, what you see at most trials, and what you see in most corporate conference rooms. They were ugly and flawed. Again, though, they were better than nothing. When defense counsel presented opening statements on Day 1 of the trial and used no visuals, I was confused. I know the background of some of these lawyers and have worked with some of them. I know they know better. It was disheartening. And then came the opening defense arguments on Day 6, and finally, excellent litigation graphics made an appearance. As I've said before, none of my articles are political in any way. I am only commenting on the quality of the litigation graphics presentations and technology used. I'm leaving the content entirely alone. Nevertheless, I know it's hard to separate the litigation graphics from the messenger if you feel strongly about one side or the other. But, if you are a trial lawyer, you really should be able to separate the two. The litigation graphics used on Day 6 were very good - both from a persuasion science standpoint and from an artistic standpoint. I appreciate the sophistication of them as they now can help me explain what good PowerPoint looks like (without getting into our presentations which are often sensitive or confidential). Let's discuss five key points and briefly discuss what you can learn from them. 1. These litigation graphics were more like a news graphic than a trial graphic. The national news industry is years ahead of most of the legal industry in creating memorable and persuasive graphics. I've written about this in articles like 10 Things Litigators Can Learn From Newscasters and Watch The Weather Channel Use Animation to Persuade.

Last month I wrote about trial technology lessons trial lawyers could learn from the impeachment hearings. In that article, I highlighted a (common) technology mistake one congressman made using PowerPoint as part of their effort to question a witness. As the impeachment hearings moved into the next phase in front of the Judiciary Committee,even more PowerPoint presentations were being used to help question witnesses. Unfortunately, since most of the members of congress are not routinely presenting and persuading with PowerPoint, they made many of the same litigation graphics mistakes that a novice trial lawyer might. PowerPoint is a funny thing. Anyone can use it (even trial lawyers, paralegals, and associates), but almost no one can use it well when persuasion is the goal. Since anyone can make a slide that looks pretty good, they often don't know they are damaging their persuasiveness in the process of creating a slide. In many trial presentations I see, lawyers who do their own work would have been far better off not using trial graphics at all. If you are an expert in the field (like the team at A2L), you know there are simply too many rules of psychology, technical challenges, and skill sets to keep track of it all -- unless you do this kind of work every day. We have written about this many times in articles like: 12 Reasons Litigation Graphics are More Complicated Than You Think 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms Trial Lawyers: Only Do What Only You Can Do In the judiciary phase of the impeachment hearings, I noticed the same kinds of mistakes were made over and over. Many relate to the most common type of litigation graphic -- the call-out. A call-out litigation graphic is one where a portion of a document is highlighted or magnified in someway to draw attention to some aspect of the document, often just some key phrases. We’ve written about best practices involving call-outs many times before: Should You Read Documents Out Loud at Trial? Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias 3 Styles of Document Call-outs Used at Trial During a single day of hearings, I noticed at least five key problems that were repeated over and over. 1. Font size. The font size used throughout most of the hearings was generally not large enough. I try to encourage people not to let their font size dip below 28 points in PowerPoint. It’s a common rule that gets broken, but when you see your witnesses or jurors squinting, you know you’ve got an issue (as seen in the photo below). 2. Font Clarity. I think many call-outs are better when they are re-typed. Re-typing just makes the text more clear in most cases. I understand that many trial lawyers want a jury to feel that they are seeing the real document, but I believe this is best achieved by showing an image of the complete document and coupling that with a re-typed call-out in a font that matches the document. No one can read the tiny, fuzzy, and low-contrast text in the document call-out below when it is projected onto a screen. The designer would have been much better off showing the slide below, then highlighting, then doing a re-typed version of the text in a call-out that filled the screen.

by Ken Lopez Founder/CEO A2L Consulting I’ve seen a great many lawyers read documents aloud at trials, and, not coincidentally, I’ve seen lawyers lose cases in part because they did so. Both experience and the science of persuasion tell us that reading documents to a jury is a persuasion killer. But of course there are times when you absolutely need to read a document out loud. This article will help you find the best ways to do so when it is necessary. There are at least five good reasons why reading documents out loud is harmful. I will go through them, then offer three guidelines for reading passages of text to a jury or judge when it is necessary. After all, it’s hard to imagine trying a contract case without reading the key provisions of the contract. The split-attention effect/redundancy effect is easy to recognize, and we've all experienced it. In summary, if you are presented with a written document and it is read to you at the same time, your brain will have a hard time sorting out whether to read or to listen. What you might not know is that you actually end up far worse off reading written materials while seeing an image of those materials than you would have if you had just done one or the other -- read the materials or listened to the words. See The Redundancy Effect, PowerPoint and Legal Graphics.

by Lorraine Kestle Graphic Designer A2L Consulting The age-old adage that there are two sides (at least) to every story is clearly evident in litigation. Both parties believe that the applicable law, when applied to the facts, supports their position, or they likely would not be going to court. The parties and the lawyers are familiar with the facts and the law. Everyone fully understands the nuances of their position. Everyone, that is, but the judge and jury who are hearing the case for the first time. It is these “novices to the case” who will ultimately decide which version of the facts or story is most persuasive. For one day, I was a “novice to the case” in the courtroom as I helped our trial technician set up for a PowerPoint presentation in court. I observed both sides’ opening statements as well as the direct and cross-examinations. Although I have been in the courtroom on numerous occasions, I had no prior knowledge of the substance of this matter and did not work on this presentation. Our client, the plaintiff in this case, delivered an opening statement that was enhanced with a PowerPoint presentation, while opposing counsel relied on typed or handwritten notes and an easel with a large paper tablet. After observing both approaches, I came away with what I think are interesting conclusions about the effect that the PowerPoint presentation had on my understanding of the case, the attorney’s arguments, and my initial impression of liability. 1. An Increased Perception Of Preparation, Competence And Persuasion As a former paralegal, I know that preparation is one of the keys to success in litigation. And while I believe both sides were equally prepared, this was not the impression created in the courtroom by defendant’s counsel. What set the opening statements apart was the PowerPoint presentation used by our client. It served as a baseline of comparison for what followed.

Whenever a litigation team presents a document in a graphic way to the jury or other fact-finder at trial, there is an occasion for a document call-out. A “document call-out” is a term of art that means taking a document that is in evidence at trial and highlighting some key portion of it for easy reading and to draw the viewer's attention to the key language.

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: