By Celia McGuinness. She is managing attorney at the Law Office of Paul Rein, a small firm practicing disability rights law in Oakland.
Trial attorneys need to be adept at telling jurors a story, but they also must make jurors understand a case intuitively and emotionally. That can be particularly difficult when the case involves lots of technical concepts or documents. And the more difficult it is to grasp the facts or framework of a case, the less time and energy jurors have left over to understand and adopt a narrative.
Constantly improving courtroom technologies help attorneys overcome this challenge and present concepts and conclusions more effectively. Apps and other technologies are changing even the kinds of ideas lawyers can convey and the variety of ways they can appeal to jurors. A concept or mechanical feature that once might have taken several minutes or even hours to digest using words and static drawings now may take a judge or juror only a second to absorb from animated graphics. These also can depict complicated relationships among parties or describe a highly elaborate process, such as the hoops that inventors must jump through to get a patent.
“Different jurors absorb and retain information differently. If you have something for the visual learner, the aural learner, and the kinesthetic learner, you have maximized your opportunity to persuade,” says Miles Cooper, a personal injury trial attorney in San Francisco.
Attorneys can create some visuals themselves using commonly available technology such as photography and video, of course. The simplest tool for showing an image to a jury may be the Elmo Visual Presenter, essentially an overhead projector with video capability. An attorney also can place a three-dimensional model on the Elmo’s viewing panel and move it around so jurors can see it “up close” from various angles without actually handling it. Most trial consultants consider Elmo a utilitarian backup to newer trial presentation software.
New animation software is much more powerful for attorneys than the circles and lines and “dissolves” of a PowerPoint presentation. You may need to hire a graphic designer, but the potential is limited only by your imagination. Cooper has commissioned simple animations, such as enhancing an MRI of a spinal herniation with coloration so it’s easier to see. He has used complex animation to show a surgical procedure. A graphic designer can also take a complicated image, such as a map, and remove some details and enhance others in order to emphasize the salient aspects of a location.
Working on an employment disability discrimination case, trial graphics consultant Debra Murov created an animation of a highway traversing rolling hills to illustrate all the opportunities an employer had – and missed – to end its discrimination against the plaintiff. During closing argument, her client, the plaintiff’s counsel, used the animation to demonstrate how many times the employer made bad choices, pointing to exit signs that popped up along the road with labels such as “Failure to engage in the interactive process.”
“Instead of just hearing the attorney list each violation, the jury got to watch them pop up and anticipate what the next one would be. It kept them highly attentive,” says Murov. (View the animation on her website at www.envisionlit.com.)
Graphics and animation used demonstratively are admissible under state and federal law. In a case involving the fatal shooting of a police officer, the California Supreme Court found that, with the appropriate foundation, animation is proper demonstrative evidence and not inherently prejudicial, despite its potentially powerful effect upon a jury. The defendant had objected to a crime-scene re-creation that was intended to show the location and order of shots fired; the court ruled it was admissible because it accurately represented the expert’s opinion. (See People v. Duenas, 55 Cal. 4th 1 (2012).)
Of course, basic presentation software like PowerPoint and its Apple analogue, Keynote, can be used to create time lines, organizational charts, and even simple animated dissolves, where words and images fade in and out or move across the screen. And PowerPoint is now available as an app for tablets.
But attorneys and consultants agree that visuals should serve a narrative and not be used for their own sake. That means the best tool of all is sometimes an old-fashioned marker on a giant pad of paper.
“One very effective closing I heard about from several other attorneys was by my partner, Jean Hyams, in an employment discrimination case,” says plaintiffs attorney Leslie Levy of Oakland. “[Hyams] had the employer’s policy blown up on a piece of foam core on an easel. Then, during her argument she took a black marker to it.” The vigor of her movement and the graphic elimination of whole sections of text that the employer had ignored conveyed a powerful image without any software at all.
Levy cautions that exhibits involving technology must have a specific point, just like every other element of a trial, and they won’t succeed if they look gimmicky. “I like that we are using tech. [But] we should use it when it makes it better for the trier of fact. Don’t use it just because it’s there.”
Above all, attorneys should take time well in advance of a trial to begin preparing demonstrative evidence. “Even a simple time line takes time to plan and edit. It should be worked out hand-in-hand with your opening statement,” says litigation graphics consultant Michael Kelleher, a partner at Cogent Legal in Oakland.