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.
Instead, trial counsel should consider the manner in which a graphic will ultimately be used at trial at the same time that the graphics are developed. Trial graphics are typically presented through three types of persons: lay witnesses that have personal knowledge of the key facts of the case, expert witnesses to discuss technical issues or industry practices and the trial lawyer himself in opening statements and closing arguments. Trial counsel must be careful to select the most convincing witness to present the most crucial graphics and ensure that each witness is adequately prepared to interact with the appropriate graphics. This is particularly true, and often , when presenting lay witnesses. But whether lay or expert, the most effective presentation of graphics involves continual interaction between the graphics and the witnesses before the jury.
After identifying the “voice” for the graphics, the trial lawyer must decide what medium to use. Years ago, before the information and internet age and nightly news bombarded the public with charts and animation, trial lawyers were concerned that jurors either were not sufficiently attuned to such presentations or would fault the side presenting “flashy” graphics as oversimplifying (and hence “talking down” to them) or appearing to “over-lawyer” the case. While such concerns may still persist in certain jury pools, most trial lawyers understand now that today’s jurors all but expect (and appreciate) such displays if they help the jurors understand complex facts or synthesize key trial themes.
There is certainly still room for a simple blow-up, and even trial counsel writing out key facts on a flip chart can be persuasive. And the economic realities of smaller cases with limited adverse exposure may well militate in favor of simpler graphics. But particularly where complex facts may be lost during a month-long trial, animated graphics often help keep the jury’s focus. Some of the most effective graphics are displayed to the jury by video in a “build” fashion in which new screens of a graphic are presented sequentially as the witness testifies. This allows the jury to accept the ultimate conclusion as its own. This is the ultimate success of persuasion; When the jury is trying to anticipate what screen comes next based on what preceded it, the jury is necessarily paying attention and coming to the conclusion itself, which is always more powerful than simply being told what to conclude from the evidence.
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.
A word on use of graphics in closing arguments. Regardless of the primacy argument, this can be the most persuasive use of graphics, when the final graphics summarize the key facts. It allows counsel great latitude in arguing the significance of the evidence; indeed, closing argument is just that—it is the only time counsel can persuade through direct of what the evidence shows. Good closing graphics take the prior graphics and evidence a step farther and persuade by themselves by appealing to the jurors’ rational and emotional predilections at the same time.
As we have seen through this series of articles, inside counsel should not balk out of hand at trial counsel’s suggestion to retain and use a quality trial graphics consultant. When developed through a collaborative process with counsel beginning well before the close of discovery and presented through appropriate and prepared witnesses, graphics can reduce the complex to the simple, neutralize negative facts and emphasize positive ones, by appeal to the jurors’ common experiences and predispositions, all within a fundamental winning trial theme.