Part 1 of 2 (go to part 2) In the 1990's the DOJ/EPA initiated litigation against a large number of coal-fired power plants based on the New Source Review (NSR) process under the Clean Air Act. Among other things, the NSR process requires operators of coal-fired power plants to seek EPA review and approval to make modifications to their plant that would increase emissions. Exceptions exist for routine maintenance at the plant and any emission increase must also be significant. Unfortunately, Congress neglected to define routine and significant. Animators at Law has been called upon to create legal animations and other information design focused trial graphics in a number of these cases. These cases typically have billions of dollars at stake, and the more EPA-friendly the current presidential administration, the more cases get filed. In this two-part post, I want to share portions of a 13-minute animation created for use in opening in one of these NSR bench trials. We worked on behalf of the power plant operator in this matter, and we faced a Government trial team who came armed with their own legal animation. Throughout the history of NSR cases, the Government has taken the position that any big change at the plant requires EPA approval. This includes large parts that are changed routinely. It turns out, however, that most parts in a plant this size are large, and the government argues that by maintaining the plant, one is extending its operating life thus increasing emissions. The Government opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks. Our challenge was to make the point that while large parts were changed, they are relatively small in the context of such a large facility. We knew two things that were helpful in this bench trial. First, the government was comparing our parts to semi-trucks. Second, the judge was known to visit the old Busch Stadium where the St. Louis Cardinals played and where semi-trucks were often parked outside. The message delivered by the clip below in opening was: yes, we changed big parts, but everything at our plant is big, thus we must ask, big compared to what? Is a semi-truck really that big compared to not one Busch Stadium but twenty? I think this legal animation reflects a good use of information design to convey scale when billions of dollars where at stake.
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.
After the introduction of PowerPoint 2003, PowerPoint became the dominant trial presentation tool used by litigators. It has largely replaced printed large format trial exhibit boards in most high stakes cases. However, PowerPoint also introduced a problem that deserves our attention. Instead of graphic designers creating well-designed printed trial boards, litigators and their support staff could now create exhibits on their own. Some did create great presentations, however the vast majority of trial and corporate presentations came to be dominated by the dreaded bullet point and text-heavy slides. Comedian Don McMillan covers this and other PowerPoint-related topic best: What is problematic about the bullet point and text-heavy slides in PowerPoint trial presentations is not what you might first think. Yes, bullet points almost surely lead to boredom. Sure, they are not a particularly effective technique for emphasizing key messages. Worse, as Don McMillan notes, it can be excruciating when someone reads their bullet points and text. However, worst of all is something called the redundancy effect. This scientifically validated concept is the true enemy of the effective litigator deploying legal graphics.
by Ken Lopez The term information design is less than fifty years old. The use of specialty trial graphics in the courtroom started less than thirty years ago. Only very recently have the terms been used in the same sentence. That is, only recently have individual practitioners of both arts emerged. Wikipedia describes information design as "the skill and practice of preparing information so people can use it with efficiency and effectiveness. Where the data is complex or unstructured, a visual representation can express its meaning more clearly to the viewer." I would call it simply the effective and efficient presentation of information. Applied to the litigation graphics consulting industry of which I am a member, I would add the word persuasive. This is true since the job of the modern litigation graphics consultant is to persuade not merely to present information.
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:
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