In the first article in this series we introduced the value of good trial graphics in the presentation of persuasive trial themes in jury trials. In this article, we focus on the nuts and bolts of the working relationship to suggest how the counsel-consultant partnership can be leveraged to develop the best graphics. In our final installment in this series next month we will explore how the ultimate graphics product can best be presented at trial.
As alluded to in the last article, good trial graphics are not your father’s Sunday morning comics. They are not simply diagrams or timelines of who did what to whom and when. A good trial graphics company adds value far beyond simply drawing figures, charts and timelines. Rather, a good trial graphics designer partners with your trial counsel to focus on the critical facts that lead to your fundamental trial theme and then presents those facts and that theme in the simplest yet most persuasive manner.
Once insnnide counsel recognize the need to retain a graphics consultant, they will need to understand what to expect in the coming months—in other words, what the consultant will actually be doing and how that work will be reflected in its bills. A trial graphic should concisely include, summarize and present the key underpinnings of the theme, so having the end-product in mind throughout the development of the facts and legal arguments of the case is critical.
At the same time, equally important at this juncture is that development of the most persuasive theme is an on-going process, not left to the eve of trial. Counsel must avoid the temptation to view graphics consultants as akin to testifying experts whose retention may be left toward the end of the lay discovery process. Instead, the best time to retain a graphics consultant is after preliminary discovery has shaped the main facts in the case but six months or more before close of fact discovery. Employed early enough in the litigation, graphics consultants can steer the lawyer toward development of a discovery plan that solidifies the evidence underpinning the theme. It may be, for instance, that in creating a graphic, counsel will realize that a critical element of the case is missing, one that can only be developed through fact discovery.
The graphics development process begins with the consultant’s review of the critical pleadings, summaries of facts, early disclosures and the like to gain an initial understanding of the background facts and allegations. Then the collaboration begins.
The mere process of formulating trial graphics will force your trial lawyer to sit down and deal with often conflicting pieces of evidence to decide what fits the common message and how to deal with evidence that does not. There is no substitute for lead trial counsel sitting down with the consultant and conveying the timeline of events, the critical documents and anticipated fact witness testimony. To maximize the value of the consultant, trial counsel must initiate the discussion with as impartial a presentation of the facts as possible; just as in a mock trial, it does little good to present a one-sided, partial view of the case timeline and related documents. The critical trial themes cannot be developed without an understanding of the case weaknesses, as well as the strengths. Indeed, it is often through an in-depth analysis of the opponent’s case that your own strongest themes emerge. For instance, if you are accused of breach of fiduciary duty in misappropriation of another company’s core talent, it may emerge that your best defense is by way of demurrer; that is, yes, you took the employees but they did not belong to the plaintiff in the first place because (for instance) the plaintiff defrauded the employees into joining it at the outset. Only by understanding and accepting certain of the plaintiff’s premises can you see what really transpired.
This is truly a partnership. While you have undoubtedly selected your trial counsel in part because of his or her self-confidence, trial theme development is no place for hubris. You are paying handsomely for the hours of consideration by the graphics consultants and counsel should affirmatively seek out their reaction to the evidence (including video clips of critical witness testimony). Trial lawyers are masters of the law and development of the facts but may have a tendency to lose the forest for the trees. For instance, what may seem self-evident to counsel steeped in the nuances of the case may be lost on the jury. Good graphics consultants who have seen hundreds of trials unfold with thousands of graphics will continuously pull counsel back from his or her assumptions (for instance, “This deposition admission by CEO John Smith wins the case for us!”), question counsel, play devil’s advocate and refine the strongest themes. Only then does the work on the actual graphics begin.
Because of this process-driven nature, depending on the size and complexity of the facts and associated legal argument, inside counsel should not necessarily expect to see presentable final graphics even after several months of the consultants’ work. Trial and error is part of the process; you and your outside counsel must be prepared to cast aside draft graphics that do not fit the evidence as it evolves. The consideration and casting aside of graphics that do not fit the message is no less important than the ultimate graphics presented to the jury. Thus, the real value of partnering with a quality, experienced graphics company that has assisted in the trial of hundreds of similar cases is not simply in the final product, but in the process of graphics development.
At the end of the day, it might be said that a handful of the best graphics, when developed collaboratively and presented together in a coordinated quilt, can almost try the case themselves. Indeed, the graphics can incorporate, summarize and manifest virtually every critical fact in the case, leading to one final, self-evident conclusion.