The Litigation Consulting Report

Science tells us that when persuading with words, pictures can make us many times more persuasive. Half of our business is rooted in this basic truth. But I believe there’s a way to go further and be even more persuasive. It’s something I call Persuasion Pairing. What Is Persuasion Pairing? By Persuasion Pairing, I mean carefully and cleverly combining a short phrase or word with a reinforcing picture or other sensory element. It’s more than just a visual metaphor. Done well, it’s like a supercharged persuasive tool—a verbal hook plus a visual anchor that makes a message unforgettable. Consider a scene from Molly’s Game, a true story of a competitive skier turned celebrity poker game matriarch, masterfully acted by Jessica Chastain. At one point, the skiing course is described as being “like skiing down the side of one of the great pyramids.” That line instantly paints a picture: steep, intimidating, and unforgettable. Years later, I’ve never forgotten it. That’s Persuasion Pairing in action. Here's the 10-second clip from the movie below.

In the courtroom, a picture can indeed be worth a thousand words. Trial graphics are revolutionizing the way jurors understand and retain complex information by transforming abstract concepts into tangible visuals. These graphics serve as powerful tools that break down intricate data into more digestible formats, making it easier for jurors to follow the narrative of a case. Whether it's through detailed charts, immersive 3D animations, or interactive timelines, trial graphics play a crucial role in bridging the gap between complicated evidence and juror comprehension, ultimately enhancing the overall effectiveness of legal presentations. The Evolution of Trial Graphics in Modern Courtrooms The use of trial graphics in courtrooms has evolved from simple chalkboard drawings to sophisticated digital presentations. In the early days, trial graphics were rudimentary, often consisting of basic sketches or hand-drawn diagrams on chalkboards or paper. These early trial graphics served the basic purpose of illustrating key points in a case, helping to clarify testimony and evidence for the jury. However, they were limited in scope and detail, often requiring significant explanation from attorneys to convey their full meaning.

PROS: PowerPoint is a versatile tool that many lawyers use for creating trial graphics. It can be used to create visual aids that can help present arguments in a clear and concise way. While there are many tools available for creating trial graphics, PowerPoint is a popular choice due to its ease of use, flexibility, and accessibility. Using PowerPoint for trial graphics can help simplify complex concepts and make arguments more compelling. For instance, you can use PowerPoint to create timelines, charts, graphs, and other visuals that can help illustrate key points. This is particularly important in cases where multiple parties, complex facts, or technical details need to be presented to the jury.

Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in the stock market or in mutual funds, directly or through their retirement plans, and may have some sense of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting. Furthermore, even fairly sophisticated jurors don’t have a good knowledge of accounting terms or of securities law concepts such as “causation” and “fraud,” which may have quite different shades of meaning in the law from their meanings in everyday life. Thus, it is extremely important to present securities cases, which may involve issues of insider trading, fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market works and their day-to-day sense of fairness.

In a trial in which harm to the environment is at issue, the major challenge for any litigator is to present complex scientific information in a way that is easy for an average person to understand. For our litigation graphics consultants, this is true whether we are helping to represent an alleged polluter against a landowner or other person who alleges environmental damage, or whether it’s an insurance coverage case in which our client is asking an insurer to cover a claim under a business insurance policy. In many cases, the task is further complicated by the fact that environmental harm occurs over a period of years or even decades. In such situations, it is crucial to show not only how the damage occurred initially but how it became more serious, or less serious, over a period of time.

Construction cases are among the most difficult for even the most experienced litigator to present to a jury. As Gary Greenberg, a professional engineer and frequent expert witness in construction cases, has written on a construction blog, trials involving construction defects, failures to perform up to specifications, scheduling problems, and similar issues create many practical problems for trial lawyers. Greenberg notes that jurors often become lost in technical jargon, don’t understand the sequence of activities required to complete a construction project or the relationships and responsibilities of the various parties, and fail to see why every major construction project is truly unique and cannot be compared to producing widgets in a factory. Greenberg, who works for Arcadis, a well-known consulting firm, writes that in one case in which he testified, a jury found that a design professional violated the standard of care, caused a six-month delay to the opening of a new hospital wing, and was responsible for the need to rework various essential systems, but was assessed only one dollar in damages by the jury.

Still think PowerPoint is a trial presentation tool primarily for bullet points and text? Allow me to show you otherwise! Like a good salad, PowerPoint is all about the ingredients you put into it. Bad ingredients (e.g. text only, bullet points, clip art, poor color choice, etc.) equal bad PowerPoint trial graphics. Good ingredients (e.g. technical illustration, well-designed backgrounds, quality transitions between slides, animation, etc.) equal winning trial graphics. Since the introduction of the 2003 version, PowerPoint has been a go-to tool for patent litigators in claim construction hearings, tutorials, at the ITC and in patent infringement trials. Out of the box, PowerPoint is simply a blank canvas that allows text, clip art and basic shapes to be combined on a slide. However, in the hands of an information designer at a trial consulting firm, it is a powerful tool indeed. Like a master painter with high quality paints, skill and experience, the blank canvas of PowerPoint can be filled with true works of information art in the hands of a skilled information designer. The movie below contains four examples of patent infringement trial graphics created by Animators at Law. Three of the four examples were created for jury trials or Markman hearings. One example was built for a §337 ITC hearing. All examples combine technical illustration and PowerPoint animation in a clever way. The examples are:

At Animators at Law, roughly 60% of our work involves patent litigation graphics. These patent cases run the gambit from light bulbs to software to semiconductors to drug eluting stents. Since a jury is often called upon to decide the key issues in the litigation they must understand the underlying technology. There is no substitute for well-crafted graphics in a patent jury trial involving technology. Our firm has been creating litigation graphics in intellectual property litigation since 1995 often utilizing our former patent litigators has graphics consultants. While our delivery medium is often PowerPoint, the underlying graphics or animation are usually created in a more sophisticated illustration software tool. We routinely use visual analogies as a teaching and persuasion technique. Specifically, we use analogies that relate complex subject matter to something familiar or easily grasped by the fact-finder. We have used stadiums to relate scale in a bench trial where the federal judge was a season ticket holder, the Statue of Liberty to convey the severity of the turbulence and an out of business service station to explain expenses involving the storage of nuclear waste. In the patent litigation graphic below, our challenge was to explain a protection MOSFET or metal–oxide–semiconductor field-effect transistor. In non-technical jargon, a MOSFET is a switch used to control the flow of electronic signals. We ultimately needed the jury to achieve a much deeper understanding than this definition, however, and this meant starting with a basic understanding of how a MOSFET works. In the movie, you can see that we have used PowerPoint animation and a plumbing analogy to lay the foundation for an understanding of a MOSFET, transistors and semiconductors. After all, like a valve attached to your sink, a MOSFET is simply used to control flow.