The Litigation Consulting Report

Very often, trial lawyers face what feels like an impossible dilemma. The case that they want to present is extremely complex, intensely tedious or worse yet, both.

Many litigators have developed the excellent practice, while preparing to try a major case, of running all or some their case before a mock jury and then debriefing the jury to see what worked and what didn’t, and to fine-tune their trial presentation accordingly. A mock trial is an excellent investment of money and time when the matter is large and significant enough to permit it. Not only can you test mock jurors’ reactions to alternative arguments and themes but also their reactions to the trial graphics you are considering for trial. As we found in a now well-known three-year study about the differences in the way litigators and jurors naturally communicate, more than two-thirds of jurors prefer to learn visually, and only a very small percentage prefer to learn by only listening. Until recently however, most mock trials tested only arguments, themes and sometimes some rudimentary demonstrative graphics. Increasingly however, we are setting up mock trials, testing alternative arguments and themes, AND we are creating sophisticated trial-ready litigation graphics for BOTH sides of the case. For the right case, this approach offers a more accurate predication of how the entire trial presentation will be received. It is a mock trial best-practice.

Electronic presentation tools such as PowerPoint and Trial Director have changed the way in which lawyers and trial consultants present evidence to juries. These programs and others like them are so flexible and helpful in presenting numerical data, timelines, biological processes, the workings of machinery, and other information that in many ways they have displaced the old-fashioned methods such as printing words and graphics on foam core trial boards.

In our 16 years in the trial presentation business, and after consulting on more than 10,000 cases, we still hear litigators concerned that their trial presentation/litigation graphics might somehow look “too slick” and will distract the jurors, or will somehow focus attention on the relative wealth of our client who is able to afford “fancy graphics.” In the early 1990s, this was a valid question. No one had used PowerPoint, no one had a cell phone – let alone a smart phone -- few people had personal computers, and most of those had black screens with green text. That is no longer the case. Technology has penetrated into every part of the United States and indeed into most of the world. A 2011 report from the Pew Research Center’s Internet and American Life Project indicates that 85 percent of U.S. adults own a cellphone, 52 percent own a laptop computer, four percent own a tablet, and only nine percent do not own any of these or other devices covered in the study. Those numbers will only increase. According to Robert Gaskins, the creator of PowerPoint, more than 500 million people worldwide use PowerPoint, with over 30 million PowerPoint presentations being made every day. Trial consultant Robb Helt, at the end of a trial in rural Arkansas, was able to talk with the jurors about the use of trial presentation technology/trial techncians in their just-completed trial. Helt found that the theory that jurors are uncomfortable with technology had been “blown away” by this “down home” jury. These jurors were not only comfortable with trial presentation technology – they expected to see it.

Although checklists are not as dramatic as other types of litigation graphics such as three-dimensional animations or interactive PowerPoint timelines, they can be very effective in persuading juries on key issues and in making it easier for them to recall the important elements of a case.

Litigation graphics can be especially useful in aviation cases. Nearly every juror has been an airline passenger at some point, and jurors know that while most flights are uneventful, mistakes committed by airline employees or others can result in serious injury or death. A good trial exhibit will illustrate exactly what happened on the flight and will properly evoke people’s concerns about flying, without being improperly inflammatory. For example, in two high-profile airline trials in the 1990s, using only the technology that was available at that time, we produced highly persuasive trial animations and other litigation graphics.

Courtroom animation is often indispensable for the purpose of showing jurors how technical processes work, how scientific principles come into play in a case, or how a legal concept applies in practice. In addition, by applying trial consulting principles, litigation animation can also be used to keep a jury engaged and interested. Too often, when a case involves complicated technical issues, the jurors’ attention will wander, and even an excellent set of witnesses or a brilliant closing argument will not win the case, because the jurors just haven’t been focusing all along. Ray Moses of the South Texas College of Law made this point well in a comprehensive online guide to prospective criminal defense attorneys. “Modern day jurors - most of 'em are either geeks or baby boomers - receive and process information through increasingly sophisticated visual media. Every trial lawyer, particularly defenders, must learn how to use technology to engage the jury. The persuasive force and eloquent power derived from using visual and aural displays of information in electronic form, e.g., computer-generated exhibits, at trial simply cannot be ignored,” Moses wrote for the Center for Criminal Justice Advocacy. An excellent example is the highly complex legal concept of reinsurance. Not every lawyer knows what reinsurance is, and certainly most lay persons on juries have no idea. (It is insurance purchased by an insurance company from another insurance company as a means of transferring risk from the first company to the second company.) A juror, hearing the term “reinsurance” being bandied about at the trial, can easily conclude that this is something he or she can’t understand or make a judgment about and can thus close himself out to a lawyer’s arguments. Clearly, trial lawyers need a way to keep jurors engaged and involved when complicated financial transactions involving reinsurance are at issue in the courtroom. These cases can be worth hundreds of millions or even billions of dollars to the client. At Animators at Law, we developed a PowerPoint for a trial that helped make a specific reinsurance transaction easier to understand and that was intended to engage a jury’s interest. In this case, we wanted to show that “Washto,” a reinsurance company, had created a subsidiary into which it had placed many of its bad investments. It then transferred those bad investments to “Greek Re,” which had acquired Washto, thus saddling Greek Re with the bad investments.

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.