Lights! Camera! Action! Verdict!
A Trial Team's Responsibility to Visually Entertain Using Demonstrative Evidence

Part 3 of 3 (jump to part 1 here or part 2 here)

The Experience Economy

Another fairly recent trend our society is the advent of the “experience economy” as outlined by authors B. Joseph Pine II and James H. Gilmore. Their basic premise is that our society has shifted from being primarily agriculture based, to one based upon manufacturing, then one that is service based. Now, our economy has evolved once more and is today centered upon providing consumers with an entire experience, creating events that go beyond simply providing a good or service.

The penultimate example of a company that relies on the experience economy is Walt Disney, whose Disney Parks offer not just amusement park rides but a full range of other services and goods that are delivered in a distinct, distinguishable way. The experience of visiting a Disney park includes interaction with Disney staff, eating at Disney restaurants, relying on Disney transportation, all of which have a particular and recognizable feel. Guests participate fully in the experience, employees act out roles and personalize each event for Disney guests.

The entertainment industry has clearly applied the lessons of the experience economy to its field, and now other industries such as Starbucks and Pizza Hut are following this trend. Starbucks can successfully charge several dollars for a cup of coffee because its customers are receiving more than a cup of coffee- they buy the “feeling” they get when they enter the shop, identifiable by certain music playing, by the design of the items sold as well as the actual store, by the type of other customers in the store, by the ability to sit and chat at a table. The tools these businesses use, proven to please their consumer audience, should be translated into the world of litigation. No longer can a lawyer simply stand up, orally argue the points of the case, and expect her audience to remain attentive. They must provide an experience for the jury.

A reasonable goal might be to use one piece of demonstrative evidence with each witness (both on direct and cross-examination) for each element of the trial. Ideally, the exhibits alone would almost argue the entire case, to the point that a deaf jury could understand the case merely by reading the exhibits. If such a jury were only to see the exhibits and then be required to answer the court's charge, they could probably do so if the exhibits had been prepared to address all the outcome-determinative issues in the case. All too frequently, lawyers prepare exhibits without giving adequate attention to the most critically disputed facts and how their resolution will cause the jury to answer the questions in the court's charge.

Availability of Demonstrative Evidence and Support

Now that you are aware of the necessity of fighting jury apathy and passivity, how do you do it? Whether your trial expenses are severely limited by your client’s bank account or if your client has given you carte blanche to spend, you can find a way to support your case with appropriate graphics and animation.

You can hire a design or animation company that specializes in creating exhibits that keep jurors interested and that convincingly convey information. Take advantage of the fact that many of these companies have years of experience determining which factors are important to the aid in juror absorption of facts. Juror psychologists, whose services can include testing exhibits on mock jurors, are also available at varying costs. Presentation hardware specialists can manage any equipment difficulties that present themselves during trial.

You can also purchase inexpensive design software to create your exhibits in-house, and there are numerous design theory resources from which you can gather information. Professor Edward Tufte, a leading design theorist, has published a series of books on this topic and offers seminars to the public.

Regardless of which tools you choose, you must recognize your duty as a member of the trial team to not only transfer vital information to the jury, but also to safeguard your client’s interests by keeping the jury alert, interested and entertained.


End of Part 3 of 3 (jump to part 1 here or part 2 here)


Footnotes:

1. See generally B. Joseph Pine II, James H. Gilmore,The Experience Economy (Harvard Business School Press) (1999).

2. Fred Misko Jr., Picture This! Demonstrative Evidence (Oct. 13, 1995) (published online at www.misko.com/library/demsbar.htm)

3. Frank Herrera, Jr. and Sonia Rodriguez, Courtroom Technology: Tools for Persuasion, Trial, May 1999, citing Lewis L. Lapham, Hide-and-Go-Seek, Harper’s, Nov. 1, 1998, at 11.

4. Id.

5. Hunt, Litigation News, Use of Videotape in Opening Statement (May 1997); Bernstein, Lawyers Alert, Presenting Time Lines (June 1992).

6. Misko, supra Note 2.

7. Benjamin K. Riley. On Trial Tips: Effective Use of Computer Graphics and Animations, Association of Business Trial Lawyers (November 1997).

8. Mike Mccurley and Diana S. Freidman, The Art of Persuasion, (published online at http://www.aaml.org/artof.htm)

9. Misko, supra Note 2.

10. Edward Tufte, Visual Explanations: Images and Quantities, Evidence and Narrative; Envisioning Information; and The Visual or Display of Quantitative Information (Graphics Press)( 1997,1990, and 1983, respectively).