"The eyes are better witnesses than the ears." —Heraclitus, circa 500 BC
"Things seen are mightier than things heard." —Alfred, Lord Tennyson, 1864
More than 2,300 years separated the lives of Greek philosopher Heraclitus and English poet Lord Tennyson, yet they both understood one thing:
When it comes to how people absorb, process and retain information, the eyes have it.
Heraclitus and Tennyson "got it"—and, thank goodness, almost everyone involved in modern day litigation has "gotten it," too. It really wasn't all that long ago that many attorneys blanched at the idea of organizing their opening and closing arguments or key witness examinations around an integrated visual presentation.
But not anymore. Today, in the year 2012, it is hard to imagine a trial of any kind without the substantial use of visual presentations. Whether it is timelines, graphic illustrations, patent process animations, document presentation systems or the ubiquitous PowerPoint slide show, trial lawyers increasingly are more dependent on, and confident in, the visual presentation of their cases.
It's about time because the truth is that we live in a visual world. We wake up in the morning and turn on CNN, beaming video and graphics to us from around the globe. We find USA Today outside our hotel room doors, giving us the news via graphic illustration and photographs as much as through the printed word. We log onto the Internet, a streamingvideo, graphics-saturated banquet of visual information, and we feed on it whenever and wherever we please. On the highways, billboards tell us what to buy, bumper stickers tell us what to think and road signs tell us where to go. And when we get to our destination, the nightly newspeople tell us of the day's events, all with a combination of graphic images, animation, video and photographs strategically perched over the anchor's left shoulder.
We are visual creatures living in a visual world. We think visually, we communicate visually and—most important, when it comes to the juror who must absorb, deliberate and decide—we learn visually. Skeptical? Consider the following:
-- Studies by educational researchers suggest that 83 percent of human learning occurs visually, and the remaining 17 percent through the other senses.
-- Retention studies show that three days after an event, people retain 10 percent of what they hear from an oral presentation, 35 percent from a visual presentation, and 65 percent from an oral and visual presentation.
-- Research indicates a 70 percent increase in retention after three months when information is presented visually.
How many trials last three months, you say? Not very many but enough. And juries often deliberate for three days or longer, weighing the evidence they've heard—and seen—over the course of a trial no matter how long it has been in session.
So let's just admit the obvious: The use of visual communications tools in the courtroom has not only become the norm in litigation today, it is, dare I say, mandatory. The stale objections of the past have been overruled by extremely positive experience with media tools; the jury no longer is out, the verdict is in and the case is closed.
The exception now is the norm—visual presentations are not only readily accepted, but they often are encouraged by the courts as a way to simplify complex testimony, speed up the pace of trial, and ease the learning curve of both the judges sitting on the bench and the people occupying the jury box. So, as the saying goes, "What's not to like?" Judges get speedier trials; jurors get information in an understandable, enlightening and often entertaining way; and litigators get a variety of powerful tools to present their case in a compelling and persuasive manner. Everybody wins, right? Well, maybe...
Because there is one problem that has evolved as trial visual presentations have come of age. And that is, with the ever-growing smorgasbord of delights available to the trial lawyer of today—the increasingly flexible and facile trial presentation systems, the medley of commanding and persuasive media—there, regrettably, is a tendency to overeat.
A little bit of this, a dollop of that, a pinch of the other, a taste of everything. And soon enough, the plate is filled to overflowing, everything runs together and nothing stands out. And by the time you're finished eating, you wish you'd never started.
Unfortunately, this too often happens in the courtroom. Trial teams become so enamored with varying forms of media that some type of visual, it seems, is used for every point, every witness, every thing. And over the course of a trial—as the jury is bombarded with image after image, day after day—use becomes overuse and, ultimately, abuse of these great tools. Everything runs together, nothing stands out and the jury ends up wishing it had never started.
Here's the problem: To paraphrase the legendary Marshall McLuhan, the danger is letting the medium become the message. We have become so good at using the tools available to us—graphics, synchronized video depositions, 2D and 3D animations, PowerPoint slides—that we begin by focusing on how we're going to say something rather than what it is we want to say.
And as we increasingly rely on these wonderful tools in the modern era of litigation, we run the risk of losing the most potent tool of all. And that is the tool of good storytelling.
With all due respect to Mr. McLuhan, the medium is NOT the message. The message is the story that ultimately must be told to the jury in a way that enrolls them, engages them, moves them and, finally, persuades them.
The story is the case. It is not the voluminous testimony, thousands of datapoints, multiple fact patterns and continuous expert witnesses. Obviously, they all are necessary and, at times, critical to the trying of the case. But, in the end, all these details form the skeleton on which the body of the case is shaped, the chapters in which the story of the case is told.
A good story told competently coupled with a well-designed presentation of the facts, issues and evidence is an unbeatable combination. Chances are, you probably are familiar with developing a presentation of your case; but what about telling your story? In more than 20 years as a litigation consultant, I have come to the conclusion that a good story in the courtroom is no different than it was back in grade school: It has a beginning, a middle and an end. Let's take a brief look at each one of these:
Beginning – How does a great story begin?
Simple: It grabs your attention. It makes you want to keep turning the pages to find out how the story will develop and what will happen. The opening statement in a trial serves the same purpose—it should make the jurors want to stay with you as the case unfolds. Here are some ways to make this happen:
-- Begin with a compelling statement, something that appeals to the jurors' innate sense of curiosity: "I am going to tell you things about Acme Corporation that you have never read in any newspaper"; "By the time this trial is over, your view of chemical companies will be completely different"; "In this case, you are going to learn facts that will challenge you—here are just a few of them."
-- Incorporate convincing visual exhibits, rehearse the opening, revise it, rehearse it again, revise it again, etc., until the images on the screen seamlessly appear on cue to punctuate the key elements of the opening.
-- If possible, with authenticity, blend in humor—it gives the jury permission to relax and provides them a reason to like you and to listen to you.
-- Try to resurrect brevity as it is a dying art. Yes, I know that each fact and every word are important but probably not to the everyday people sitting in the jury box.
Middle – What's makes a good middle of a story? Once again, it's simple: It moves the story along. As you progress from fact witness to fact witness and expert to expert, your story must unfold in a meaningful manner, and, above all, the jury must feel that headway is being made. Consider doing the following:
-- Truncate complex testimony with visually enhanced tutorial style exhibits; give the jurors not just the facts they need but the vocabulary required to understand the facts.
-- Develop your story in a logical fashion but also in a way that keeps jurors' interest piqued; know the temperament and "presence" of your witnesses and try to feel how the jury will react to them. Dry testimony by a stiff (but necessary) witness does not need to be followed by more of the same; remember, a good story usually has a roster of well-developed characters.
-- Mix up the media as well as the testimony. I had a case where videotaped depositions were to comprise the first 10 days of trial; after the first day or so, no one was paying attention, and a few jurors were catching up on their sleep. Graphics, video, document treatments, Elmo, flip charts, animation, PowerPoints —there's plenty out there. Not all need to be used but think how each can be used to create variety.
End – Ah, the end! After X weeks of trial, we're finally at the finish line. Just like the close of a 300-page book, the closing summation must be logical, satisfying and persuasive in pulling together the evidence. Think along these lines:
-- Do not laboriously repeat all the evidence presented during trial; take key themes the jury received favorably, dress them back up (now you can use additional evidence presented during trial) and refresh the jury's recollection—and their appreciation
-- Develop visuals based on trial testimony (see above): How many stories have you read where a secondary character comes back at the end to play a major role? Tip:
Have your trial consultant and/or team member take notes on possible closing exhibits from the opening onward—you won't regret it.
-- Don't forget that jurors are people, too; appeal to their emotions, their sense of loyalty, dedication, fairness, responsibility and integrity. Close your case the way a good book ends: making you think and demanding that you care even after the last page has been turned and the story has been told.
Beginning, middle, end – tell your story, use the visual tools to your advantage and remember: The goal isn't to impress or entertain—but to persuade.
The views expressed herein are those of the author and do not necessarily represent the views of FTI Consulting, Inc. or its other professionals. (c)FTI Consulting, Inc., 2011. All rights reserved.
