A recent study about the best use of litigation graphics during trial reveals some new insights. This study was conducted by Persuasion Strategies, a litigation consulting firm that is part of Holland & Hart, a law firm. The study team was led by Ken Broda-Bahm, a leader in the art of visual presentation in the courtroom. With a doctorate in speech communication that emphasizes rhetoric and legal communication, Dr. Broda-Bahm is a genuine expert in jury consulting.
by Ken Lopez In the courtroom, the attorney who has the best chance of winning a case is generally the one who is the best storyteller. The trial lawyer who makes the audience care, who is believable, who most clearly explains the case, who develops compelling narrative and who communicates the facts in the most memorable way builds trust and credibility.
by Ken Lopez Trials are structured in familar segments – opening statements, direct examination, cross-examination and closing arguments. Of those events, I believe that opening statements deserve more emphasis than any other portion of the case.
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.
Learn why the work of the father of group psychology from 70 years ago is so important to the leadership of a modern trial team. Stories about a trial team breaking down at or just before trial are legendary. The breakdowns are typically triggered by some event that creates anxiety that then causes the team to engage in one of three progressively severe sets of behaviors:
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.
Part 2 of 2 ( go to part 1) I will begin by reiterating key elements of the first post in this this two part series. More than 20 years ago, the Justice Department began filing lawsuits against a large number of coal fired power plants based on a Clean Air Act provision called New Source Review (NSR). The NSR process calls on power plant operators to seek EPA review and approval before making modifications to their power plant that would significantly increase emissions. An exception exists routine maintenance. Since Congress neglected to define routine and significant, litigation has followed over these definitions. Animators at Law has worked on many of these cases and created trial graphics and legal animations. I want to share portions of a 13-minute animation used in the opening of an NSR bench trial in 2003. We worked on behalf of the power plant owner in this matter. We faced multiple challenges such as: conveying the scale of the plant; explaining the plant's operation; showing how the projects in question were not large; showing how these projects were in fact routine maintenance; showing how none of the projects increased emissions. After the Justice Department opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks, we had to make the point that while large parts were changed, they are relatively small in the context of such a large facility. With billions of dollars at stake, Animators at Law prepared a large number of trial boards and legal animations for the case. In part one of this post, I shared how Animators at Law compared the size of the facility to Busch Stadium using legal animations. Below is an example of how we combined technical illustration with a legal animation overlay to provide an overview of the plant, to explain how the plant worked and to again emphasize scale. Below is a trial exhibit used in an NSR trial that effectively compared the routine maintenance of the bridge to the routine maintenance at a coal fired power plant. We think it was a very effective analogy and a leading environmental publication agreed and remarked on its use. Below is another legal animation showing some highly skilled 3-D modeling and animation used in another New Source Review Case. The 3-D model was used in other legal animations and graphics to explain the unique geography of the plant.
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.
Animators at Law spent three years studying how attorneys and the general public prefer to communicate and learn (visual, auditory or kinesthetic). The study results were surprising. It turns out that practicing attorneys and the general public actually prefer to learn and communicate differently. For litigators, the impact is enormous. As a result of this scientifically valid study and our 16 years of experience as an industry pioneer, we believe trial exhibits are essentially a requirement and not an mere communication enhancement for any high-stakes litigation. You can download the FREE study results here or by clicking the button below. In this study you will learn:
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