In the first two articles in this series, we explored the advantages of using graphics to present and illustrate the trial lawyer’s key evidence and themes and the process used in developing those graphics. In this final installment, we suggest how to make the actual trial presentation of these graphics most persuasive. Read part one here and part two here.
The development of trial graphics is not the end of the process. Once the graphics have been finalized, you must make decisions as to how those graphics will be presented to the jury. In far too many trials, good graphics are developed but left to languish before the jury. Even the best “blow-ups” lose their punch if introduced through the wrong—or poorly prepared—witness or if referred to briefly and simply left on an easel.
Finally, counsel should consider the order in which the graphics are presented. Jury consultants often refer to the three stages of juror learning – primacy, recency and repetition. While there is considerable debate on these concepts, primacy suggests jurors remember and accept what is presented first and recency suggests what is presented last (before deliberation) is most important. Repetition, by contrast, suggests that the order is less important than keeping the message continually in front of the jury. Our experience is that an amalgam of the three is most effective. As explored in our first two articles in this series, the ultimate trial theme must be presented and argued throughout the trial. Trial ought to be a quilt of facts that all fit together and lead to a common conclusion. Facts alone do not convince. Nor is it convincing to try a case as a discrete series of witnesses testifying independently of one another to unconnected issues. The jury must understand how the facts fit with one another to comprise the theme. Thus, the graphics that best embody and tie together those facts must be presented continuously to the jury.
One particularly effective manner of doing this is to have lay witnesses and experts use the same graphics whenever possible. Typically (though not always), the lay witnesses testify first to the background facts of the case, often with a timeline. The expert then adopts the timeline (and often continues with her own graphics that summarize the effect of those facts). Doing so allows the jury to constantly see the same graphic through multiple witnesses, throughout the trial, thus blending primacy and recency through repetition. Again, this is most effectively done through interaction with the key lay and expert witnesses, where the witnesses “build” the graphics, often out of the witness box and in front of the graphics.