In the second part of this special guest episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small interviews Scott Duval, managing director at FTI Consulting, about the practical aspects of working with trial graphics and multimedia designers. They discuss key considerations for attorneys when selecting a graphics expert, the importance of teamwork and venue-specific presentation styles, and common pitfalls such as overwhelming juries with too much information. Mr. Duval shares insights on effective storytelling through visuals, including the challenges and power of presenting video depositions. The conversation highlights how strategic use of graphics and multimedia can enhance jury comprehension and trial outcomes, emphasizing clarity, readability and thoughtful presentation roadmaps.
Podcast Transcript
Dan Small: Welcome back to The Trial Lawyer's Handbook podcast. We are thrilled to welcome back Scott Duval. Scott's managing director of FTI Consulting and an expert on multimedia and graphic design, and worked with trial teams for 25 years. And I've had the pleasure and the privilege of working with him on a couple of matters. Scott, welcome back. Thank you for coming back.
Scott Duval: Thank you for having me, but the privilege is honestly mine.
Dan Small: I wanted to start out, we were talking in the last episode a little more thematically about the importance of graphics. I want to be a little bit more practical this time and start at the basics of what should an attorney look for when hiring a graphics or multimedia designer?
Scott Duval: First and foremost, obviously a good team member, someone that can assemble with your trial team well. I think the importance of meshing is very important. However, I think a lot of it, Dan, comes down to experience. And I know many attorneys will want someone that has, quote, "relevant experience" as far as what kind of case it is. You know, hey, this is a construction defect case. I would love someone on the team that has that kind of experience. And that's important, but as you know, every case is unique. So sure, maybe it's a construction defect case, but there's an issue of, you know, a hurricane that came through at some point, and it's force majeure, stuff that, you know, I barely understand. Well, topic-specific experience is great. It's probably not the only consideration. I would think that experience with a similar trial team is helpful. If you're a small team, you're close knit, you want someone's going to roll up his or her sleeves and get in there and talk to you about kind of what your themes are. It may be important that you get someone who's accustomed to working in that environment and doing demonstrative evidence as well as sitting in a courtroom and presenting.
Dan Small: I sometimes worry about that because if your graphics provider knows too much about that particular area, that's not who we're presenting to. We're not presenting to people who are experts in the area. And so I want someone who is looking at it and saying, "OK, how does this work and how do we explain it to a jury of my peers?" Not to a jury of engineers or physics experts. How does it also — you've done this around the country and around the world — how does it vary in different venues, or do you find that it varies in different venues, how you present?
Scott Duval: Sure. Procedurally, I would say first and foremost, your experience a lot of times is based on whether it's a state case or a federal case. When you're involved in a federal matter, obviously there will be stringent deadlines that have to be adhered to. And when it's the state case, those deadlines sometimes go out the window. I see plaintiffs that just dismiss deadlines and show up with demonstratives and then ask for forgiveness and present. Some venues, say like the Eastern District of Texas, maybe gets a ton of patent cases. So there's a lot of experience on the judges in say Waco, Texas, that you know exactly what is going to happen and how procedurally it will occur. So a lot of times it's based on the type of case in that venue. I don't know if that answers it or —
Dan Small: Yeah, no, I think that's right, and it definitely does. I've tried cases around the country as well, and how you present varies enormously in different courts.
Scott Duval: And Dan, let me ask you, since you're a Bostonian, doesn't the federal court in Boston typically end at an early time, like 1:30 or something? I've supported some trials there, and I seem to recall quite often they end earlier than other venues.
Dan Small: Yeah, different judges are different and different cases are different, but some of the judges do take the position that they need the afternoon for motions or hearings and other cases. And there are some judges who say, look, your average juror cannot sit in a chair and listen for eight hours straight. By hour six, seven and eight, you're losing them slowly but surely, and maybe not so slowly. I've tried cases where nine to five is a short day.
Scott Duval: Yes.
Dan Small: You know, we often go longer than that, but I've also tried cases, where, as you say, we basically break for lunch and that's the break for the day.
Scott Duval: Right.
Dan Small: And I think there's some wisdom to that. It is, no juror has ever sat in a chair for eight hours and been forced to listen.
Scott Duval: Right.
Dan Small: When I was a federal criminal prosecutor, I think it was a little easier because it's easier to keep people's attention when you're talking about drugs and murder and corruption. It's a little harder when you are talking about patents and technology issues and some of that. So it varies, is the answer. And it also is going to vary depending on whether you have a criminal case where there is a defendant in jail and there's a lot of pressure to move the trial forward. So it does, it definitely varies. I want to talk about successes and pitfalls. What do you see from your great experience attorneys fall into when they're creating or working on demonstratives?
Scott Duval: So I've heard at least once, but probably more than that, some attorneys will call it trial by PowerPoint. And what I mean by that is I've seen it, say, in Wilmington Delaware Chancery Court, which they just want to get 200 slides in front of the chancellor in that venue for their closing argument. But I think one of the common pitfalls is hey, we care about this topic, we need the jury to care about it. And sometimes attorneys have, or trial teams have, difficulty picking out what those key concepts are. So they will try to shove a lot of information at a jury or a panel. And I think sometimes it's better to take a step back and think what are the really key concepts that we want to latch onto and build something from that versus just throwing everything up on the screen.
Dan Small: I can't agree with you more. You call it trial by PowerPoint. I've heard it called death by PowerPoint because people seem to think that if you put a whole lot of words up on a PowerPoint slide, it's going to have an impact. In my view, after a very low threshold, every word you add to a PowerPoint slide reduces its impact, not increases its impact.
Scott Duval: And that's, you know, we could probably bounce back and forth on these stories. I was in a federal court in Houston, Texas. Great judge, great staff, was a pleasure to work in this courtroom because I got one of the best compliments I think I've ever gotten. It was a simple one. It didn't come from a client, which that's what our job is, to get, you know, clients to be happy, but it came from the court staff, who said "Scott, the jury loves you. They say you're fast and you make everything readable." And I thought, wow, that's a great compliment because that was what they cared about, was, can I get the information? Is it there quickly and readable? And so I think sometimes we forget the most simplistic aspects of presentation and it's sometimes, it's just making it readable and accessible.
Dan Small: That's a great compliment and so very true. You talked about the importance of sort of a roadmap.
Scott Duval: Yes.
Dan Small: Lawyers don't always give the jury a roadmap of where we're going. Talk about that.
Scott Duval: I really appreciate it when they — being, you know, the presenting attorneys — will create a roadmap and say these are the four topics we are going to cover. And it helps, I think, anyone get through that presentation, and then reminding them, here's the introduction, now we're going to talk about the liability or the damages or whatever the roadmap is, it helps people digest the information. And I think sometimes in an effort to be economical with the number of slides and the amount of work that goes in and the focus on the content, those roadmaps kind of wind up on the editing floor, and it's not great. It's better if they can remain.
Dan Small: The other thing I want to talk a little bit about is video depositions. When I teach, I think — you know, I wrote the ABA's manual on preparing witnesses, and I teach about depositions and video depositions. I talk about how fortunate we are to have so many examples of incredibly smart, articulate, successful people who were such disasters in a video deposition. I used to talk about the three Bills, you know, Bill Gates, Bill Clinton and Bill Cosby. But there are so many more now. But I think video depositions, once upon a time, video depositions were the exception, and people would do them, you know, to try and intimidate somebody or whatever. But, I think, in many cases now, they become more the rule, and people are videotaping pretty much everything, and that leads to your work because once you have the videotape, that doesn't help you unless you can figure out the right way to present it. So how have you found those challenges?
Scott Duval: So video to me is one of the most challenging aspects for a team when they're in trial. If a witness isn't showing up and we've got to present it in lieu of live testimony, it's, as anyone who does this will know, a continual back and forth of designations, counter designations, and it just doesn't end until that person is presented. And revisions will happen continually. But I think that videos quite often aren't a focus and they should be, because if a witness isn't showing up, you know, you got a lot of work. A lot of the documents that are referred to need to be scripted into the presentation so that the jury or judge or whoever can follow along as the person refers to a document. And as well, when the person shows up live and you have the ability to impeach that witness, I think it's very powerful that a witness, sometimes it sneaks up on them and opposing counsel really doesn't expect it and you're able to play a snippet that then puts that witness on guard. I've seen them behave differently where they go "uh oh, they have my entire depo." And you play a couple clips and they start to worry about, OK, I want to answer this question, but how did I answer it in my depo? And so, you know, maybe they didn't prepare well enough, or in the depo, they just didn't do a good job answering it. So I think that it's a lot of work, but there's a lot of benefit to a successful video presentation.
Dan Small: I think you remember in a case we worked on together, I had an expert witness who got flustered by my questioning in a deposition, and at one point there was a word, a strong word that he used in his report to characterize what my clients had done, and I said, that doesn't appear in any document, does it? No. You just made that up, didn't you? And without thinking, he said, yes. And his yes was forever enshrined in videotape and ultimately the other side actually withdrew him as an expert, I think, in part, because his deposition contained a number of nuggets that we would have used to our benefit.
Scott Duval: And one last thing on this and Dan, perhaps, I don't want to put you on the spot, but if a party opponent is videotaped, if I'm not mistaken, the trial team can use that deposition, right?
Dan Small: Absolutely.
Scott Duval: And so I've seen that happen in the opposing counsel. It's happened two, three times. Maybe objects, and it doesn't get sustained. And that video depo is now fair game to just, hey, I'm going to play your video. Tell me your thoughts at the end of it. And it's not great sometimes. So that's something that I've had come up. And it is isolated incidents, but it's pretty powerful.
Dan Small: It is, and when I teach these issues, I often tell people, look, too often lawyers and clients say, oh, it's "just a deposition," quote unquote, without realizing that no, this is your trial testimony.
Scott Duval: Correct.
Dan Small: Or at least it better be, and you better prepare your witnesses accordingly. And too often even very good lawyers just don't focus as much on witness preparation, but that's, don't get me started on that.
Scott Duval: Yeah, and sometimes I've found that the teams will say can you create these designations so that I can show them to this witness. I know you've done that as well to show them, you know, reading a transcript's helpful, but being able to see the actual clip is really great for witness prep.
Dan Small: Absolutely. Scott, this has been so great. I really appreciate it. Thank you for coming on board with your valuable time and wisdom. Scott Duval is the managing director of FTI Consulting and a 25-plus-year veteran of trials, trial teams and trial graphics. And I can't thank you enough for coming onboard.
Scott Duval: I thank you for having me, Dan.
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