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Using trial graphics to develop the theme of your case

Using trial graphics to develop the theme of your case

Graphics are a useful tool to help persuade juries


Plaintiff's Radiation Dose: A Comparison, by The Focal Point LLC

 

This is the first of a three-part series discussing the use of graphic illustrations in jury trials. In this part we examine the advantages of trial graphics and in the second and third parts we will focus on the process of trial graphic development and trial presentation.

When your trial counsel comes to you with a request to retain a trial graphics outfit, resist the temptation to dismiss the proposal out of hand. From a budget perspective, if you have decided that trial is a realistic possibility, you are already paying your outside counsel handsomely to retain experts, manage key documents, finalize discovery and, if the case is significant enough, hire a jury consultant to undertake a mock trial. So the question becomes, “Do you really need to pay another vendor?” Depending on the size and complexity of the case, the answer often is “yes.” Just as you would retain a persuasive expert, so, too, should you give serious consideration to retaining the persuasive power of a good trial graphics designer.

Evidence without focus is evidence lost. Putting into evidence all relevant documents and deposition testimony is only half of the battle. That is because persuasion is an art, not a science. Counsel may be able to get all of the documents and deposition testimony into evidence, but without a unifying message, the jury may well be lost. So how does one best focus the critical evidence? Around a common theme—the message that ties together the evidence around the critical message you are trying to convey. The beginning and end of effective persuasion is a focused theme. How that theme is presented becomes critical. Today’s jurors are creatures of the Internet and electronic media age in which we all live; they are technologically sophisticated and yet expect simplified, immediate answers. And more often than not, jurors think visually. Good graphics ensure that the actual trial does not simply become an end-dump of incoherent evidence.  

Effective trial graphics allow the trial lawyer to condense complex concepts and detailed fact patterns into an easily understood theme that springs from, and plays off of, the jurors’ common, everyday experiences. So, for instance, as a defendant in a toxic tort class action, how do you persuade the jury that exposure to 2 millirems of radiation is infinitesimally small? A jury generally has no empirical footing to relate a millirem to an ounce, a pound or a ton. Your expert may instruct the jury that a millirem is so small that it could not possibly cause cancer. Yet to the jury, that is an entirely abstract concept. But the jury does understand the size of the Empire State Building, for instance. And graphically analogizing the height of the Empire State Building to a two-pack-a-day smoker, and then comparing that relationship to a two millirem exposure of radiation as the bottom two inches of the building can have a powerful effect on the jury. (The strength of such a graphic representation appears above.) While a jury may nod off after days of complex technical testimony, a graphic that synthesizes that testimony will often get a jury’s attention. A good trial lawyer will often intersperse technical testimony with graphics that continuously force the jury to focus on your ultimate theme.

Experienced graphics designers, with hundreds of trials under their belt, are part psychologist, part lawyer and part expert in the substantive field. If, for instance, you are a defendant facing trial with no real substantive defenses, a graphic consultant steeped in the psychology of persuasion can tell you whether jurors may be receptive to attacking the plaintiff (whether by character, motivation, contributory fault or otherwise) or whether that tactic likely will backfire. Trial lawyers too often view jury trials as simply adjuncts to motion practice and believe that success lies in simply presenting the evidence and obtaining the best jury instructions on the law, with little regard to the psychology of persuasion. But jurors are, in the final analysis, people with human reactions and emotions. What is unpersuasive to a judge constrained by the law who has presided over hundreds of trials may well persuade nine or twelve lay jurors from diverse walks of life. Trial graphic consultants and their graphics can bridge this gap, understanding what motivates and persuades the largest cross-section of a panel’s members.

Trial graphics are an increasingly indispensable arrow in the trial lawyer’s quiver of persuasion and should be as much a part of the litigation budgeting process as depositions, expert witnesses and mock trials.

Contributing Author

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Ethan A. Miller

Ethan A. Miller at Hogan Lovells is a trial lawyer in state and federal courts focusing on commercial disputes, including cross-border trade secret, fraud, unfair...

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