There can be no words without images

The above quote from Aristotle (384-322 B.C.) is the Tao of visual communication. 

It has been a while since I posted here. Returning to law firm life has kept me very busy the last eight months. Additionally my self-imposed writers block prevents me from publishing unless the content is substantive. I abhor bloggers who post one paragraph or a random thought – that just adds to my impending carpal tunnel generated by gratuitous clicking through rubbish.

Anyway I just completed a trial in Philadelphia and witnessed (no pun intended) a stunning example of visual communication at play. It inspired me to return to this blog and write a tad about my experience. For background our case had a voluminous amount of data to the sum of several hundred thousand pages. There were many parties involved and it was a bench trial much to the dismay of plaintiff’s counsel. 

Our judge was an elderly but scholarly man who was interested in the facts and not a side show. Therefore we had the task of being very on point with our witnesses’ examinations and presentation of evidence. In any trial the lawyers are generally constrained by time and in a bench trial this is a heightened concern. During pre-trial meetings it was very apparent that our judge would NOT allow minutiae or argument too many times.

Our setup in the courtroom was the standard projector, screen and monitors for all counsel. Since we had no jury we took advantage of the jury box and setup the screen there. This proved beneficial later because it was so close to the judge’s bench. 

During opening statements it became clear to me and the rest of our case team that the judge was responding to our exhibits positively. Plaintiff’s counsel presented evidence with Trial Director (as did our team) and spent time constructing many multi-tier callouts from deposition testimony. In a jury trial these would have been nice but I think it was a tactical mistake in this bench proceeding. Each except of testimony had a two page leader, e.g. announcement of the deponent and then the full page of transcript before the callout was finally published.

In a time constrained opening this method was not only a flow killer but not terribly easy for the judge to follow. The text ubiquity had the judge sagging in his chair not even minding the screen or his monitor after the first ten minutes.  When it comes to quick communication techniques the adage goes, pictures are worth a thousand words, and often much more. Visuals usually are the best communicators and in this trial they proved attention grabbing and persuasive. 

For our opening we immediately went to the most compelling photographs of the entire case. We intertwined this was some quick video snippets and interactive flash documents. The judge was not only listening to our lead trial attorney but was paying attention to every exhibit. This in turn was the theme of our entire presentation throughout the trial. In retrospect considering our trial was estimated to last multiple weeks this strategy would have worked well with a jury. 

Text competes with the trial attorney because the jury cannot listen while they’re reading a screen or monitor.  Instead communicating visually and orally as often as possible takes the BORING out of any presentation. Obviously in a document intensive case we cannot possibly avoid showing text to a judge or jury. And in no way am I suggesting that visual communication techniques are a perfect replacement for required text exhibits. Instead I encourage any reader of this blog to be creative in their use of interactive/multi-media, photographs, video and custom presentations. 

Know your audience – or at the end of the trial they might know nothing about your case.

Trial Technology Lifecycle.

The use of trial technology has seen exponential growth over the past few years. Social media and the constant sharing of ideas certainly have assisted to close gaps which existed in the past. It is indeed rare to find the best in breed using last year’s tech in a high stakes trial. However it remains something litigators should be considering when preparing for trial. Certainly some dated technology is still useful but it is always wise to continue investigating proven and industry accepted current tech.

Often budget constraints, busy schedules or just plain ignorance of current tech is the culprit for many case teams. With that foundation in mind many smaller firms turn to a vendor. In theory in order for the vendor to remain competitive they must monitor the technology lifecycle very closely. Unfortunately that is not always the case when retaining a vendor. Very often what is being paid for is indeed dated or obsolete technology.  Therefore it is wise to ask questions, get references and compare the tech being used to the vendor’s competitors.

Years ago I was involved in a two week trial just when trial presentation software had started to take off. Both my case team and opposing counsel were still using document cameras as a crutch. We both retained a vendor to provide us with our own ELMO and projector. Unfortunately the vendor our team hired provided us with outdated tech. The difference between our opponent’s presentation and ours using our respective equipment was glaring. Our images were grainy, dark and just anemic by comparison. By the end of the second day we made an arrangement to split costs with opposing counsel and shared their equipment. Don’t be fooled by fancy sales pitches and slick advertising. Do the legwork and make sure you are getting the best equipment and software to assist with presenting your client’s case.

On the law firm side of things it remains imperative for the litigation support department to be familiar with new technologies and trends. Even if trial presentation remains something which is outsourced case teams often rely on Lit Support for advice on whom and what to use. If Lit Support is involved in trial presentation work then the correct budgetary allotments need to be allocated to insure the firm is not behind the proverbial eight ball. Many practices which settle most of their cases often fall victim to the trial technology lifecycle. When making it to the big stage there is nothing worse than snickering jurors because the tech is outdated, malfunctioning or inoperable. The bottom line is making sure the technology your team is relying on has not been superseded by something more reliable and visually compelling.  To quote McNealy, “Technology has the shelf life of a banana.”

Opening Statement Tips.

Over the years I have been both entertained and yawned to death by various opening statements. I have always thought the opening really sets the tempo for the rest of the case. Far too often they are exercises in complete boredom or just thirty minutes of chaos. There is an overused adage about first impressions which rings true when facing twelve decision makers. Below I have compiled some tips which I believe are helpful for both the veteran litigator and the greenhorn.

 

Opening Tips

• Keep the cue cards and notes to a minimum. If you have to glance at your notes occasionally to make sure nothing important is glossed over that is fine. However holding your notes and reading from them makes you look like a newbie and unprepared.

• Never make evidence promises to the jury during your opening that you cannot deliver on. Don’t think they will remember? Is that really a chance you are willing to take on your client’s behalf? They will remember and the credibility of your case will be tainted in the deliberation room. Additionally you may have opened a door that opposing counsel can drive a truck through in their closing.

• Don’t fumble with exhibits. If you have planned to show the jury something then make sure you are prepared. Digging through a banker’s box, scouring digital images or trying to find some elusive page in a huge text all look bad. Have it ready or don’t use it.

• Avoid PowerPoint as an Opening tool. Anyone who says otherwise is giving you advice from ten years ago. OK so now your notes are on a big screen and you are reading them. This is not how to engage the jury with technology. Use trial presentation software and stay dynamic rather than static. Get in and get out keeping the focus on the jury.

• Don’t dress in outlandish garb with enough jewelry to open a store right in the courtroom. You may think those 10lb gold cuff links look good with all ten Liberace rings but the jury may have other perceptions. Keep it simple and professional. You want the jury concentrating on the theme of your case and not your attire.

• Shy away from courtroom drama phrases like “the evidence will show” because they are simply overused and boring. Stick to your theme and just present the facts of the case. Be engaging and keep the jury interested with your presentation.

• Think visually and use analogies whenever appropriate. Give the jurors anchor points for their memory and not just verbose blobs of fact. You may think you sound smart but you are putting them to sleep.

• Don’t go over the top when describing injuries to the jurors. This is almost guaranteed to assault the senses and runs the risk of anger, disgust and other unsavory emotions. None of which you want directed at you or fed into an ambulance chaser moniker. Get in and get out and don’t desensitize your jury. Let the experts deliver the injury knockout punches.

• Keep it short and crisp. Anything else potentially will have your jurors wondering when the madness will end. Remember the mind can only absorb as much as the seat can endure.

• Look at the jurors – each of them. They will not pay attention if you are speaking to the wall, ceiling, your shoes or a pile of notes.

The Future is Now.

I finally had an opportunity to sit down and blog! Over the holiday break I tried very hard to unplug for a few days and it did me a world of good. During that time I thought back to the evolution of technology I have used in the courtroom over the past fifteen years. It seems like just yesterday I was lugging a desktop tower and full sized computer monitor to the courtroom. I recall very clearly the loud and obnoxious sound the fan made when I was trying to playback a video file so big it needed its own zip code. The USB flash drive on my current keychain has more storage space then that old desktop!

As fun as recalling the war stories of old tech may be what the future potentially holds is much more interesting. Our jury pool is very quickly changing with the addition of younger people and the exit of technology curmudgeons.  Our new jurors are addicted to social media, smart phones and invigorated by technology which is interactive. Appealing to these jurors will soon be difficult with static presentations such as PowerPoint or worse an archaic flip chart and penmanship which needs archeological intervention to decipher.

Below I will briefly explore four areas which I believe will find their way into the courtroom. Anyone of these areas could potentially become the next big thing for trial presentation. My basic ground rule is the technology must assist the jurors to absorb and understand. Otherwise you are left with an expensive endeavor which did more harm to the learning process then good. As our jury pool changes new presentation technology will not be a distraction but rather expected. 

3D
With the release this past year of the first wave of 3D televisions a light bulb went off for me. One of the biggest barriers with presenting video and photo to a jury is always the lack of depth perception. Depending on the case and subject matter a complicated animation may need to be rendered just to recreate that loss of content. Or worse a physical model (although tactile is good) is used and depending on the judge it never makes it into the juror’s hands. Nothing like a squinting juror as they attempt to see the partially obscured model an expert is referring too.

How cool would it be to show the jury a 3D video right after the lunch break! Their stomachs are full of food and they think they will just dose off during some boring video. Then counsel passes out 3D glasses and suddenly our jury is awake, having fun and ready to learn. OK, so that probably would not work depending on the court venue but autostereoscopic enabled screens would. Autostereoscopic displays are able to provide depth perception without the hindrance of specialized headgear or glasses. The potential for learning and “taking the jury there” are endless with these 3D displays.

The autostereoscopic displays have already been designed and retail for about $20,000. Drop in the bucket, eh?  It really is nothing if you think how fast the technology will plummet in price. By comparison in 2003 a 40” LCD TV cost roughly $9000. Compare that to the low price of $500 in 2010 and it just proves my point.

Kinect
As soon as I saw the commercial for this I was enthralled. Admittedly the technology is in its infancy and apparently the sensor is riddled with accuracy issues. The technology is based on gesture recognition so you can imagine the possibilities already in the courtroom. Considering the current form is able to track up to six people I see no reason why accuracy could not be improved for just one user.

Imagine an expert teaching the jurors from the witness stand or an opening statement aided with this technology. I think a compelling way to use this tool would be to control an avatar for demonstration purposes. The witness could physically recreate a situation with an environment that is tailored to the case. The benefit here is the jury would see the witness and the avatar go through the motions. I think from a presentation aspect it would be very helpful for the jurors to understand both physical movements and environmental or case theme relationships.

Touch
This is the one area of technology which I believe could be integrated into court room presentation sooner than later. Most of us are already using annotation capable monitors on the witness stand.  There is no reason why we could not take that step further and introduce this touch technology into trial presentations. This would allow a witness to enlarge, flip and move key photos or documents around.

I would venture to say that most people are already using a touch capable device every single day. It is not beyond the realm of belief to consider this technology being used in synergy with various types of presentations software. Windows 7 Touch and a touch sensitive screen are already allowing this to happen. We have not even scratched the surface of how touch will make our lives easier as presenters well into the future. Move over mouse and traditional keyboard!

Laser
This one is something to get very excited about. This technology brings us one step closer to full blown 3D laser holograms in the courtroom. OpenLase is an open-source real time laser graphics project which is shown in the video below.

Will this eventually be mixed with gesture technology to give us Ironman type presentation capability in the courtroom?

The possibilities are just mind boggling to consider. Just gauge how fast science fiction of yesterday has become the technology of today. I recall watching Star Trek as a youngster and thinking how cool Kirk’s flip open communicator was. Smart phones do that and so much more already! My Nostradamus prediction is ten years and jurors will be considering holographic evidence.

In closing I just want to challenge everyone to think about how technology will continue to change and enhance visual communication. This is especially true in an environment such as a courtroom with an audience composed of jurors. Those twelve people need to absorb and understand some complicated concepts often in a short time frame. Any technologies which make this learning process easier are a leap in the right direction. How Kinected will you be?

Reference

Autostereoscopy. (2011, January 16). In Wikipedia, The Free Encyclopedia. Retrieved January 17, 2011, from http://en.wikipedia.org/w/index.php?title=Autostereoscopy&oldid=408283802

Kinect. (2011, January 16). In Wikipedia, The Free Encyclopedia. Retrieved January 16, 2011, from http://en.wikipedia.org/w/index.php?title=Kinect&oldid=408209978

Technology and the Chewbacca defense.

Over the years I have been asked by several case teams about the dangers of using tech in the courtroom. Most of these inquiries were founded in the belief that technology may be too slick. Or perhaps the jury may infer the client has a tremendous amount of resources to spend on the case. Of course ten years ago those were valid concerns but not in our current age of increasingly tech savvy jurors. However, there are also still many pockets of resistance amongst the general populace. Therefore, we must consider the ramifications of letting the technology overwhelm the audience.

Interestingly enough I am not referring to the technology you may use in your own presentation. Instead those tools which are employed by your adversary. In my experience there has been a very subtle increase in the use of technology to confuse the jury. The presentation could be an over complicated graph, animation or demonstrative of some type. These examples are almost always supported by the tech/lawyer speak of an expert witness.

A few years ago I was involved in a two week trial were this strategy was engaged. Plaintiff’s engineering expert used an electronic whiteboard and went on to create a mathematical nightmare. During various points of this presentation video clips of his tests were displayed to the jury via monitors. It was apparent to me that this entire exercise really amounted to nothing. Although the case team’s goal was to attempt to make the witness and his arguments seem more intelligent then they actually were. This went on for a good two hours to the crossed eyes of some jurors.

This is a classic example of the Chewbacca defense during a trial presentation. The Chewbacca defense is a fictional legal strategy used in episode 27 of South Park. Just for reference the Chewbacca defense is a strategy which seeks to overwhelm its audience with nonsensical arguments, as a way of confusing the audience and drowning out legitimate opposing arguments.

To combat this approach our team also used technology but had simplified the message. We already knew what to expect at trial just based off expert reports. The art of visual communication is to assist the audience with comprehending the information it is asked to absorb. We did not painstakingly show the jury all the equations used to come to a conclusion. That experience was akin to performing a self lobotomy with a spoon.

Instead we went back to basics and asked our expert to explain her conclusions from the witness stand. This testimony was bolstered by photographs, minimal graphics and documents which mirrored what she was saying. Everything was presented on a large screen so the court, counsel and jury could all see the evidence at the same time. The end result was a jury which was paying attention (half the battle) and nodding their heads which is always a partial acknowledgment that something is sinking in.

Be prepared to counter your opponent’s use of technology as a confusion factor. This can be completed in part with the less is more theory. However, enough intelligent sounding and compelling information presented with technology is a powerful weapon. The CSI effect is a specter in our courtrooms which has a very strong presence. Juror’s love technology and expect it during a trial presentation. Be sure to provide them the opportunity to see it used correctly through good visual communication. A clear message presented with technology as an aid is appreciated by the jury. So much that your adversary’s case my suddenly take on the aura of a babbling wookiee!

Reference

Chewbacca defense. (2010, November 12). In Wikipedia, The Free Encyclopedia. Retrieved November 17, 2010, from http://en.wikipedia.org/w/index.php?title=Chewbacca_defense&oldid=396930301

Wookiee. (2010, November 12). In Wikipedia, The Free Encyclopedia. Retrieved November 17, 2010, from http://en.wikipedia.org/w/index.php?title=Wookiee&oldid=396313538

Analogies and the courtroom.

"One good analogy is worth three hours discussion." - Dudley Field Malone

Over the years I have seen so many complicated concepts vanish into the nether void of the courtroom. Moreover uncomplicated concepts or facts which became bogged down in lawyer speak. One of my jobs as a trial consultant is to assist with breaking down these concepts and facts. The end result is to use visual communication as a tool to help a jury absorb and understand this information.  One of the biggest tools in assisting with this goal is a good analogy. An analogy is defined as non-identical comparisons between two things, with a resulting similar explanatory effect.

The best case teams I have worked with over the years have mastered the use of analogy in their presentations. This has been a constant tool and point of interest in my professional career. One of the first things I do when I join a trial team is read all the expert reports. This gives me an instant foundation of the case to work from. Then I begin thinking critically toward analogies both oral and visual which may assist a jury. Facts and comparisons are useless if the twelve most important people in the world do not understand them.

Teaching the jury with common sense comparisons is helpful to any presentation. I once worked on a case where the trial team had to explain a cystoscopy and stone extraction with stent placement. The stone removal and draining of the infected urine into the bladder was an important part of the case. The analogy of a champagne bottle being uncorked was used to explain to the jury the force of which the infected urine was released from the ureter. This is an example of a very simplistic analogy that everyone could relate too. We then used several demonstratives/animations with Trial Director to further bolster this analogy during our expert’s testimony.

Analogies can also assist with the theme of any case. This is especially true in product liability cases which are often ripe with analogous and comparable information. Even though there are distinct differences between consumer and professional products they are often begging for creative analogies. Juries love having something they can latch onto for their deliberations. The trial team must be prepared to create that “light bulb” moment so the jury has the sudden realization that they have encountered something similar before.

Having your presentation loaded with good visual communication and thought provoking analogies is the ultimate challenge in the modern courtroom. Getting a jury to always come back to the theme and REALLY absorb the relevant data of the case is the most difficult task for any trial team. Add the pressure of breaking down complicated information to twelve laymen, and believe me, it’s very true.

Anything less and the trial team will run the risk of falling on deaf ears. If you don’t believe me watch the jury. Those paying attention and nodding their heads if you are lucky are getting it.

All five of them.

Reference

Viewing Metaphor as Analogy, in Analogical Reasoning: Perspectives of Artificial Intelligence, Cognitive Science, and Philosophy (D.H. Helman, 1988).

Visual Communication: Less is more

"Less is more", a phrase from the 1855 poem "Andrea del Sarto" by Robert Browning. Andrea del Sarto was a Renaissance painter who was regarded highly by his contemporaries because of his technical skill. The phrase is commonly used in our modern age to suggest that simplicity is often a better teacher then something which is complicated. In my career I have often been presented with scenarios where this very phrase has been extremely useful. Not only in toning down a requested client exhibit but also in taking a step back for a wider glance at my own work.

I recently attended a mediation in a case which the plaintiff had very severe injuries from an accident. The case team which represented the plaintiff arrived with some enlargement boards to show the panel. The exhibits were crafted professionally and it was very apparent that a medical illustrator somewhere worked hard on them. However, they were riddled with information and a real assault on the optic nerves.

Now the argument could be made that the case team was watching costs, wanted to limit the amount of boards (use presentation software then!), or needed all those voluminous injury facts in one place. Those possible explanations aside a trial exhibit should always strive to use text sparingly.  An exhibit crowded with text and photos unless built upon, e.g. a slideshow will risk over loading your audience. In a trial it’s nearly impossible (especially after the lunch break) to focus the jury on graphics which are laden with information.

The internet is available to all our jurors and most certainly used by them in some fashion. It has become the information paradigm for cramming as much data into one place as possible. Just consider the home page of your favorite browser and how difficult it can be to sometimes navigate. I consider myself consumed by technology and still remain ticked off when my browser is “updated” and all the menu options change. The jurors do not have the benefit of repeatedly looking at all trial exhibits hours on end as I do a web homepage.

Trial graphics should be designed to convey key messages to the jury rather then every message. This way the jury is spending energy focusing on the important issues of the case. Less is more also applies to over saturation of presentation slides and graphics by the jury. The minimalist strategy will assist the jurors with learning about the case and make your exhibits meaningful and full of impact. Using pictures and graphics to more succinctly tell a story to your audience is the art of visual communication.

In closing use the less is more method to de-clutter your trial graphics. My approach is to make the most important area of the exhibit large and very easy to identify. Any supporting information should be a secondary focus for the jury as to not immediately divert their attention. The goal should be to provide the jury with visual tools to better understand the testimony they are hearing. Simplicity in design will help make your trial graphics much more compelling and accentuate the facts of your case.

References

Less is more. From Wikipedia, the free encyclopedia.
[Retrieved July 19, 2010]. Available from http://en.wikipedia.org/wiki/Less_is_more