REAL SCIENCE: Why Graphics Are Needed at Trial

April 12, 2010

By simplest definition, the job of an attorney is to educate his or her audience. However, how the attorney goes about this task and how he or she chooses to impart their knowledge to the jury can mean the difference between a winning case and a resounding defeat. You will understand later why it is not prudent for a lawyer to deliver the facts through a singular method. It’s not enough to stand before the collective court and recite a 20-minute speech and to allow those very important and thoughtful words to hang alone in the air. The key to having the information remain relevant long after the jury goes into deliberation is to analyze how the population as a whole learns. That is, to see how we – from the womb to the grave – process the world around us. After all, the only way for information to have impact is for it to be remembered.

According to a report on developing effective presentations by the U.S. Department of Labor (OSHA Office of Training and Education), “approximately 83% of human learning occurs visually, and the remaining 17% through the other senses – 11% through hearing, 3.5% through smell, 1% through taste, and 1.5% through touch.” [1] But those statistics, impressive as they are, only account for the immediate breakdown and storage of information. They do not address how long that same information will remain relevant and retrievable.

There is a big difference between learning something new and retaining it. During the initial attempts by researchers to quantify these results and others like it into an effective educational delivery system, both on the lower elementary level as well as one of higher learning, they realized combining these methods of communication could yield higher results, especially when dealing with memory. An oral presentation only had a 10% retention rate three days after it was given. A visual one registered 35%. But when the presenter combined both, the audience, on average, retained 65% of the information.

This heightened cognitive recall occurs because of the way the brain processes information, a theory that would later be referred to as “dual coding.” Allan Urho Paivio, an emeritus professor of psychology at the University of Western Ontario, developed this cognitive model of distinctive mental patterns as a means to explain the extraordinary rate in which participants in a study could recall a series of photos they were shown. According to his theory, verbal and non-verbal retention are stored and organized along distinct channels in the mind. On their own, each has its limitations. Each is seen as having a differentiated mental coding in which only certain details can be effectively recorded. But when one is used to support the other, when a singular image illustrates a spoken point, the audience has an easier time remembering because an internal cognitive connection is made. The information can now be retrieved via multiple pathways. Essentially, the individual creates a mental model in which the simplified information (the image) serves as a visual cue to prime the memory to recall the more complicated facts (the spoken information).

That is why one must be careful not to dismiss the use of multimedia presentations in the courtroom as unnecessary theatrics, as mere technological flash and glitz. An attorney must see the evidence being presented from the viewpoint of his or her audience; the jury members, who haven’t been immersed in the documents for months prior to the trial, and who can be assumed to not have an intricate understanding of the factual pattern of the case. A proper presentation in which your key facts are illustrated is required and, even more importantly, expected by your Generation X or Y audience. Most informational outlets have followed suit. On average, of the articles listed on the home page of CNN.com, at least one-third are now video only, with the occasional link to an accompanying text-based translation g at the bottom of the page. The same goes for MSNBC and Google News. It’s a matter of supply and demand, of the generated content now matching the sensory driven behavior of today’s user, who relies on constructing mental models from multiple stimuli.

In a 1983 study of recognition information, Stoneman & Brody “found that children in visual or audiovisual conditions recognized more products in commercials than children in an auditory only condition.” In a similar test, Read and Barnsley “showed adults pictures and text from the elementary school books they used 20 to 30 years ago. Recognition accuracy rates for pictures and text were better than chance, with pictures alone being recognized more accurately than text alone.” [5] From the perspective that adopts the dual-coding coda, concrete words will help us generate associated images and, in relation, pictures alone help us to generate associated words. The combination of oratory and mental images establishes multiple paths by which the information can be retrieved from memory.

Evidence is the key to any trial and making that evidence clear and concise is the key to garnering the favor of the judge or jury. An image of a document with the most crucial parts highlighted will clearly serve to make the argument it represents more memorable. A timeline in which each specific, color-coordinated date animates to show its placement within the greater continuity as well as its location to the other points along the chronological line will assist the audience in recording and remembing how the events transpired. This can all be attributed to the visual emphasis. Where a string of words has to use semantic cues to its structure over the course of a sentence, a visual representation can use squares, arrows, checkmarks, space, color, typefaces, and the relative distance between its individual elements to communicate relational information.

It is without question that our society has become more reliant on visual stimuli to inform, educate and persuade. Moreover, it is clear that science supports the concept that pairing the spoken word with visuals allows the presenter to make an effective and lasting argument. Therefore, the conclusion, based upon scientific research, is that it is imperative to incorporate visual graphics into your case to assure maximum impact at trial.

Written by Ron Kurzman, Esq.,
Partner / Litigation Consultant

Ron Kurzman, Esq., is a Partner and Litigation Cosultant at Magna Legal Services, LLC. He is an expert in assisting counsel in developing trial strategy for large, complex matters, based on behavioral research and jury analysis. As a litigation and trial consultant his activities include the development of trial strategy and tactics, jury selection and voir dire, implementing shadow juries, witness communication training, ordering of evidence, opening /closing statements, development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques. He works with members of the trial team to develop themes and case strategies that will be persuasive to juries, judges and arbitration panels.

Sourced and Unsourced Reference Material

  1. Presenting Effective Presentations with Visual Aids
    U.S. Department of Labor, OSHA Office of Training and Education
    http://www.osha.gov/doc/outreachtraining/htmlfiles/traintec.html
  2. Theories of Learning in Educational Psychology
    Allan Paivio 1941 – Dual Coding Theory
    http://www.lifecircles-inc.com/Learningtheories/IP/paivio.html
  3. Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory, and Teaching of Law
    Richard K. Sherwin, Neal Feigensony, Christina Spieselz
    http://law.bepress.com/cgi/viewcontent.cgi?article=4699&context=expresso
  4. Enhancing Expert Witness Trial Testimony: Collaboration Between Testimony and Technology
    Timothy A. Piganelli
    http://www.abanet.org/lpm/lpt/articles/tch05071.shtml
  5. Multimedia Information and Learning
    Lawrence J. Najjar, School of Psychology, Georgia Institute of Technology. 1996 Journal of Educational Multimedia and Hypermedia
    http://mime1.gtri.gatech.edu/MiME/papers/multimedia_and_learning.html

Mistrials:Be Careful what you Tweet for

November 3, 2009

Just this past month Facebook reached yet another milestone, 300 million active users worldwide. Currently, Facebook’s fastest growing demographic are users those over the age of 35. Older users are rapidly adopting social media, this demographic trend is also apparent across other interfaces including Twitter. While this may be sobering news for many internet junkies, such milestones are proving to be a headache for judges and juries.

Over the past year an increasing number of cases have resulted in mistrials due to juror’s social media use. According to The Portland Business Journal, jurors Facebook and Twitter use has resulted in mistrials in Pennsylvania and Arkansas. In both cases, jurors disclosed confidential information regarding jury deliberations. The PBJ points out that one juror confidently tweeted “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” Another juror informed his twitter followers to “stay tuned for a big announcement on Monday.” Such public disclosures fly in the face of the longstanding legal practice of jury confidentiality. Judges would be wise to warn juries explicitly that their internet use can easily be monitored… be careful what you tweet!

Written by

Written by Ron Kurzman, Esq.,
Partner / Litigation Consultant

Ron Kurzman, Esq., is a Partner and Litigation Cosultant at Magna Legal Services, LLC. He is an expert in assisting counsel in developing trial strategy for large, complex matters, based on behavioral research and jury analysis. As a litigation and trial consultant his activities include the development of trial strategy and tactics, jury selection and voir dire, implementing shadow juries, witness communication training, ordering of evidence, opening /closing statements, development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques. He works with members of the trial team to develop themes and case strategies that will be persuasive to juries, judges and arbitration panels.

Provided that you’re not currently a juror on an important legal case…. Feel free to sound off about your thoughts on juror’s and social media use.

Skype used in the courtroom for first time in NYS

November 3, 2009

Last month, a Queens Judge transcended both legal and geographical barriers by allowing a plaintiff in India to testify over Skype. Due to the Skype testimony, the jury reached a verdict in a day and saved thousands of dollars in transportation costs. According to the NY Post this may well be the first time Skype has been used in the courtroom in the US. Perhaps this milestone case will set a trend for the future of courtroom testimony.

Written by:
Eric Wasnick
Magna LS

A Paralegal’s Intuition can be Critical to a Trial’s Success

October 21, 2009

Is your trial story believable? What are the strengths of your case which you can emphasize? What are the weaknesses that you can eliminate? What are the trial themes that are persuasive? These are only some of the questions that jury research can help answer.

Despite the opportunity to conduct structured jury research, I have heard many times in my career from trial counsel that, “I do not need to conduct jury research because I test all my cases on my paralegal.” As a jury researcher, I certainly cannot state that the quantitative and qualitative data received from “testing” a case on a paralegal is scientifically valid; however, I do understand and appreciate why many trial counsel rely on their paralegals to provide valuable feedback on the persuasiveness of the story line and themes of the case. Before we get into the reasoning for why paralegals are sometimes relied upon to fill the role of mock jury, it is important to understand the methodology behind jury research. Jury research provides the opportunity to evaluate how jurors view key arguments and evidence in a case. This is done prior to trial by testing themes and arguments in a case to a panel of surrogate jurors. A typical jury research project involves a focus group, where jurors are matched to the venue based upon numerous demographic variables. These jurors are then carefully screened to assure that they are jury eligible before being placed on the mock panel. Attorneys deliver a presentation for both the plaintiff and defendant. The presentations are thematic in nature and generally supported with key documents, graphics, and testimony.

The results of the presentations are evaluated in the following three manners:

  1. Questionnaires: Jurors answer a series of questions at different phases in the jury research that are designed to measure their key beliefs and attitudes, their reaction to the strengths and weaknesses in the case, and their feelings about liability and damages. These questions are administered in three phases:
    • Pre-stimulus: The questionnaires are administered to the jury prior to hearing the case information in order to gain insight on the key attitudes and beliefs that jurors bring into the courtroom.
    • Post-presentation: Jurors answer a series of questions designed to measure the strengths and weaknesses of the presentations by the plaintiff and defendant.
    • Post-stimulus: Jurors provide feedback to case specific questions, which provide an understanding on how jurors approach the verdict and damages, prior to entering into deliberations.
  2. Deliberations: After the presentations and questionnaires, the jurors are separated into groups. They are provided a verdict form and jury instructions and given the opportunity to deliberate without moderator interference. Once jurors reach a verdict, they are interviewed about their decision-making process and a variety of other issues related to their perceptions of the case. Consultants look to determine which themes fuel jurors’ verdict preference.
  3. Impulse System: During the presentations, jurors are provided with a remote control voting mechanism. The impulse system is designed to allow each juror to provide instant feedback to the presentations. This instant feedback will be analyzed to determine the arguments that are perceived as strong or weak.

After the deliberations, all of the qualitative and quantitative data is thoroughly analyzed. Consultants spend many days analyzing the information and report back to the trial team while focusing on identifying key strategies, risks, and recommendations to assist in developing the most compelling story for trial.

Now that you understand the jury research process, a look into how jurors form decisions provides context to why paralegals can assist trial counsel in providing valuable feedback about the case’s persuasiveness. Based upon conducting jury research and the study of jury decision-making, we know that jurors are persuaded by powerful trial themes. A theme is something important the story tries to tell the jury—something that the jury can relate to in their own lives. To provide you context, think about your favorite movie. Usually, your favorite movie has a theme that draws you into the movie and that you relate to. Jurors approach the case in a manner that is similar to you choosing your favorite movie. Jurors look to determine what theme in the case they enjoy and can relate to, empathize with or rationalize.

To further illustrate why trial themes are so crucial to develop, one should also consider that jurors are required (summoned) to serve as jurors. Being a juror is not any easy task. For many jurors, it is stressful due to constraints on their time. For many other jurors, the information they hear at trial and the trial presentations are complex and burdensome. To make matters worse, jurors are generally not allowed to ask questions, sometimes cannot take notes, and cannot seek out independent information that would facilitate their understanding. At the end of the trial, jurors are then forced into a deliberation room with a number of their peers and told they must render a verdict. These deliberations have the potential for conflict and can be extremely stressful to many jurors. Therefore, to make the information in the case easy for a juror to understand, and to assist jurors in rendering a verdict, jurors yearn for information to be simplified and packaged in themes.

Trial counsel should rely on paralegals because they can separate themselves from the case. They, unlike many attorneys, are not wrapped up in the minutia of facts and legal arguments. Therefore, a paralegal provides lawyers with an objective ear and an opinion about whether the attorneys’ trial themes are persuasive.

Beyond lending an ear and an opinion on the eve of trial, attorneys should utilize the unique and objective services of a paralegal at the discovery process.

With the understanding that jurors are persuaded by powerful trial themes, a paralegal can assist trial counsel in developing and organizing their trial themes during the discovery process. In order to accomplish this task, the trial team should meet prior to discovery and discuss the themes in the case that they are looking to develop. Thereafter, the discovery materials should be organized by theme, rather than by document type or deponent name. This will assist the trial counsel to focus earlier on the strengths and weaknesses of the trial themes.

While not every case is made for jury research, a trusted paralegal can act as the de facto jury consultant by keeping the trial counsel thinking about the themes that will be persuasive to a jury. From the beginning of discovery to the time of trial, a good paralegal should be asking him / herself, what are the themes we are looking to develop? How does each document or deponent support our trial theme? Is the evidence that relates to the theme we are gathering persuasive? Finally, do I like this trial story?

In short, a good paralegal knows when they hear a good trial story!

written by Ron Kurzman
Litigation Consultant / Partner

Internet Shenanigans: Juror Instructions vs Juror Conduct

October 21, 2009

Here are a few familiar jury instructions with which, in one form or another, Courts all over the country have been known to admonish jurors…

  • You have now been sworn as jurors in this case. I want to impress on you the seriousness and importance of serving on a jury. Trial by jury is a fundamental right.
  • Do not do any research on your own. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments.
  • It is important that you keep an open mind throughout this trial. Evidence can only be presented a piece at a time. Do not form or express an opinion about this case while the trial is going on. You must not decide on a verdict until after you have heard all the evidence and have discussed it thoroughly with your fellow jurors in your deliberations.

Does it really work? Do jurors take these cautionary words to heart? Maybe not so much as we might like.

In Philadelphia, defense lawyers for former State Senator Vincent Fumo recently moved to bring a halt to jury deliberations and remove a juror after he posted remarks on Twitter.com and Facebook about progress of deliberations. The juror had told his readers, among other things, to “Stay tuned for a big announcement…”i The former Senator, on trial for Federal corruption charges, said the juror had violated court instructions not to disclose the status of jury deliberations.

Close on the heels of that story, we learned that a juror in a Fayetteville, Alabama courtroom had used the latest Twitter technology to send “tweets” or short updates on the status of jury deliberations against defendants Russell Wright and Stoam Holdings in a civil trial. His remarks included comments like these:

  • “So, Johnathan, what did you do today? Oh, nothing really. I just gave away TWELVE MILLION DOLLARS.”
  • “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter….”

The defendants, faced with a 12.6 million dollar verdict, are seeking a new trial on the ground that the juror’s trial twitters may have impaired his decision making capacity during the trial.ii

It is apparent that jurors can now make use of Internet technology not only to report on proceedings in the deliberation room, but also to perform independent research about their case, the parties, or the legal or other issues before them.

The notion that jurors are not supposed to conduct independent research about a case is a basic tenet of the jury system. We want jurors to form their decision strictly on the basis of evidence which a judge has already deemed admissible. But the Courts and litigants face a wave of tech-savvy, Generation X and Y jurors who routinely rely on computer and cell technology to take in most of their information. The information jurors could gather through Internet searches, however, not only draws from sources outside the permitted evidence, but might also be inaccurate, outdated, or unreliable.

Wikipedia, one of the well-known online information sources identifies itself as the “Free Encyclopedia.” Because it is a “wiki” (a collection of web pages designed to enable anyone who accesses it to contribute or modify content) its information is only as good or reliable as its contributors. Jurors who search for case information in Wikipedia, or through any Internet source, might gather information that is not just outside the parties’ settled evidence, but also inaccurate or off-the-mark. Furthermore, the Wikipedia juror might misinterpret the information he finds there. If a juror “Googles” one of the parties, and tries to draw a conclusion about the lawsuit he is evaluating based on what he discovers online, there exists a real risk of prejudice, misunderstanding, or both.

Stories like those from the Fumo and Stoam cases suggest that this trend will only continue to grow.

What are Jurors Up To?
A wide range of technology now exists for jurors to use or misuse in the Courtroom, the restroom, the living room, and even the deliberation room. These include:

  • Google, Wikipedia and the Internet in General. Most jurors are now thoroughly familiar with the search engines, online encyclopedias and the entire internet as a tool for searching information – even if it is inaccurate or inapplicable to a legal case. These can be accessed from home and portable computers, and from cell and “smart” phones as well. Such “research” could be conducted in a lunchroom or restaurant, a hallway, or at home after hearing a day of evidence.
  • Facebook. Social networking sites like Facebook and MySpace are well-known online sites that could allow jurors to reach out to others and report on trial information and developments, or to investigate litigants or background information about an ongoing case.
  • Twitter. This social networking and “micro-blogging” service could allow jurors to send and read brief information updates or text-based posts on the fly. The service can be used through a computer or SMS phone texts.
  • Cell phones and Handheld Devices. Virtually every juror is likely to own a cell phone or PDA device that could allow telephone contact or text message communication to and from any Courthouse alcove or restroom to any person of the juror’s choosing. Some cell devices allow users to perform Internet searches as well.

What are Courts Doing About It?
Ideally, Courts would put in place policies that might discourage misconduct in advance: taking cell phones, giving specific instructions to jurors against the use of technology to research or report on trial information, and warning them about any possible sanctions for such activity. However, these policies are not enough to guarantee good behavior.

If litigants or a judge discovers juror misuse of technology during a trial, a mistrial may be declared. During a recent Federal drug trial in Florida, a juror admitted that he had been researching the case on the Internet in direct violation of the Court’s instructions. After an astonishing eight other jurors admitted the same thing, a mistrial was declared eight weeks into the trial.iii Jurors routinely research, blog and reach out electronically in a way they did not do in decades past, and almost without thinking. Once they do so, the secrecy of deliberations and certainty of evidence can be lost.

Perhaps the most troubling possibility is that attorneys and judges cannot be sure when jurors have quietly conducted research or communicated with others about trial events. Jurors may be unable to resist the belief that they will be serving justice by getting detailed answers to unanswered questions. While juror “tweets” or Facebook messages will become newsworthy in a handful of high profile cases like Senator Fumo’s, it seems likely that most “online” juror mischief might go unnoticed. In that case, the Court would simply do nothing at all.

What’s a Lawyer to Do About It?
The trend in favor of juror research and reporting on active cases using new technologies is likely to grow and be difficult to detect. What should a lawyer do in response to this trend?

  • Ask your trial judge for a specific admonition against Internet use/communication about the trial, and also include an explanation to jurors about why the rule exists and what the consequences of breaking the rule are too.
  • Use Voir Dire questions to educate jurors about why Internet research is not reliable for the case, and encourage jurors to help enforce the rule.
  • In some jurisdictions, jurors can submit questions for a specific witness; watch for clues in answers to such questions which may suggest a juror might be investigating on his own.
  • Learn some of the background signs that a juror might be investigating on his own, and be ready to raise an issue that juror misconduct created an appealable issue.
  • Ask whether your jurors use Facebook, MySpace, or Twitter.
  • Ask whether your jurors maintain a blog or similar Internet communication site.
  • Monitor your jurors’ Internet sites, “tweets” or MySpace/Facebook pages.
  • Ask your jurors whether they use smart phones, similar phones with Internet capacity, or devices like the iPod Touch.
  • Ask the Court to confiscate jurors’ cell phones while they are in the courthouse.
  • Consider encouraging your area Court to implement a policy or formal Local Rules against jurors communicating about cases not just personally but through computers, cell phones, and other electronic devices. Such a policy should also forbid Internet searches, chat room discussions and “blogs” mentioning any case.

Footnotes
i Philadelphia Inquirer, “Fumo Lawyers Target Juror, Deliberations”. March 16, 2009.
ii http://www.nydailynews.com, March 13, 2009.
iii The New York Times, “As Jurors Turn to Web, Mistrials Are Popping Up”. March 18, 2009.

written by Hiliary Remick
Litigation Consultant

Jury Consulting as a Trial Preparation Tool

October 21, 2009

It is common for consultants such as Magna to find that attorneys, often at the direction of their clients, wait until a month, two weeks, or even just one week prior to trial before calling for our help with a jury research project, preparation of trial graphics or the trial presentation database. While it is generally feasible to offer that support quickly, the Litigants do not realize any hoped-for cost savings from “holding off” until just before trial.

An old adage reminds us that the “one thing you can never recover. . . is time”. This is never more applicable than in litigation. Deadlines constantly loom and too often there arises an “all hands on deck” situation where team members are pulled in to get the project done irrespective of other projects, cases or time constraints.

The principle applies to jury consultants, too. In order to create effective trial graphics the attorney and consultant should use a thoughtful, iterative process, which will lead to not only a better end product but provide you – the attorney – more value in ways generally not thought of. Taking sufficient time to create, modify and even revise graphics which address the central themes of your case provides you a better understanding of your case and helps you identify strengths and weaknesses not otherwise perceived. The consultant’s expertise helps you turn complex information into creating memorable, educational and persuasive ideas for jurors.

The short of it is that by waiting untill the last minute, you lose a key component of working with a consultant… strategic value! Historically, our clients have found that by beginning a dialogue with a consultant earlier rather than later, they end up with a better product for less money.

The big question is… When should I bring in a consultant? And the answer is … it depends! There is no single answer to this question, because there are so many variables: the type of case, parties involved, likelihood of an early settlement. And the list goes on. A good rule of thumb holds that earlier is better. Jury consultants act as a second set of eyes. They can be much like the jury in that they are new to the details of the case and may ask questions not thought of before. Having a jury consultant involved before the close of discovery allows you time to obtain information that you might not otherwise be able to gather immediately before trial.

Another common sense reason to bring a consultant on board early involves the risk of conflicts. Waiting until the eve of trial to seek out a litigation consultant might lead to you not being able to retain your first, second or even third choice, if numerous parties are involved.

All in all, the benefits of speaking to a jury consultant greatly outweigh the disadvantages: lower costs, a better product and the value added of the consultant’s expertise earlier in the litigation process. Magna Legal Services creates a competitive advantage by providing across-the-board litigation consulting services. Ultimately, our goal is to help you win cases!

written by S. Ross Suter
Litigation Consultant

Coordination of Equipment in the Courtroom

October 21, 2009

As technology becomes the norm for trials, attorneys and their staff are posed with new obstacles when it comes to trial logistics. Many courtrooms are fully equipped with projectors, screens, document cameras (ELMOs), monitors, touchscreens, easels and speakers, with more receiving similar treatment every day; but what do you do when you are going into an unfamiliar venue in which it is up to you to provide the hardware and what do you do when opposing counsel wants to share?

Installation of equipment can be a headache. The process, at its simplest, involves contacting the court administration (clerk, security, etc), determining the existing technological capabilities, figuring out the proper way to interface with the existing technologies, understanding the local rules, methods and timing for delivery and setup of your own equipment, and implementing a sound exit strategy. Luckily, any technology consultant worth paying should be entirely adept at this process. Ultimately, your consultant will help you plan a discrete and safe setup which seamlessly integrates the technology into the normal flow of the courtroom, but gives the judge, jury and attorneys an unobstructed view of your presentation.

Another common stumbling block is what to do when both sides plan on using technology in the courtroom. The truth of this is that it is an ideal situation, putting both sides in the position to save their clients money. In many matters, the parties might not be on the best of terms and communication might be at a minimum. Therefore, it might be tempting to simply surprise your opposition with the fact that you plan to present evidence or testimony electronically the first day of trial. It can save you time and money to discuss your plans with them beforehand in order to coordinate the sharing of equipment. This will lessen the burden, and possibly annoyance, of the courtroom personnel as they won’t have multiple parties contacting them to arrange for the same thing. Generally, it is a good idea to have both technology consultants coordinate with one another to ensure a fluid process in the courtroom with equal access for all parties.

written by Dylan Green
Trial Presentation Consultant

Best Practices in Litigation Graphics: Less is More

October 21, 2009

As an audience, most of us are constantly inundated with messages from every corner of the world. How can one relax after work with a cold brew in hand while basking in the flat screen plasma glow of ESPN filtered scores? It’s an impossibility. Animated banners urge us to “click here” for the latest and greatest every time we go online. City buses wrapped in advertisements speed past like billboards on wheels. Even a nightly news program can’t just deliver the news to us. No, instead we have layers upon layers to watch, with a live newscaster in the center of our screen, one or more conspicuous logos placed along the sides, the time and the temperature, and a constant stream of scrolling text at the bottom delivering a recap of every story of note. We are so overloaded with information that we don’t even see it most of the time. We may take in a small bit of information, only to forget it completely seconds later. Or we may just ignore it entirely.

Now take 12 of us and stick us in a jury box. Because our information-overwhelmed lives have become so familiar, it’s an easy assumption for most that those same techniques favored by Madison Avenue and Hollywood will work in the courtroom. But are the most effective presentations also the flashiest? Does entertainment have a place in information design? Won’t a little humor help beat the tedium and keep a jury focused? In a word, no, no and well, sort of.

PowerPoint is not a halftime show, an ad campaign or a summer blockbuster.
Shouldn’t PowerPoint entertain as well as inform? In the courtroom, the answer is no.

A litigator’s voice is one of authority. His or her audience is looking for succinct facts and comprehensive information to aid in their decision. Although bright yellow backgrounds and bold red text may entice someone to try their hand at an online poker game, it does nothing but distract on a courtroom screen. Overproduced presentations can strike jurors as “too slick.” Particularly in cases where damages are sought, juries may conclude your team is just trying to get rich in an already overly-litigious society by hiding the truth behind vanity. Stick to the basics. Leave the fancy tricks to Steven Spielberg and Michael Bay.

At times, a little humor is beneficial. It can endear you to your audience or lighten the mood in the room. But it should come from you, in a natural way, not from some bad pun or quirky piece of clip art you’ve stuck on a slide of bullet points. Clip art is considered amateur in a presentation, especially when it has been seen before in a different context. Stay away from it. Likewise, humorous slides or puns can seem contrived and will lessen the credibility of your presentation with the audience. If humor is a part of your personality, let it shine through from your personality.

We’ve discussed how to keep your presentation from being overwhelming, now how can you keep it from being underwhelming? Here are four of my personal favorites to keep in mind.

  1. PowerPoint is not a script.
    When a speaker fills each slide with paragraphs of text and then proceeds to read, verbatim, everything shown on the screen without the slightest deviation, the jury may find themselves questioning his qualifications. They will wonder what separates this individual from anyone else in the courtroom since he or she is merely reading what someone else could have possibly written. The delivery, no matter how dramatic, will come off as stiff. Talk to your audience, don’t read to them. You can’t make eye contact or engage them if you are reading from a page or a slide. And furthermore, they can read faster than you can talk. They will jump ahead, finish before you and start fantasizing about lunch.
  2. PowerPoint is not a novel.
    PowerPoint slides are projected under less-than-ideal conditions. Projector bulbs are weak. Your screen is 30 feet away. Three of your jurors are near-sighted and one is overdue for cataract surgery. What looked pretty decent on your laptop in 12 point text is now completely illegible. Do not use text that is smaller than 24 point, and do not use a lot of it. Do not think you can fool me or PowerPoint by making small text all bold. Don’t take my word for it. Test your slides with smaller text. Shine them on a screen at least 20 feet from the projector in a room with the lights dimmed, but still on. Now try to read them standing by the projector, not up front by the screen. It’s a sobering experience, isn’t it?

    Write in bullet points, not complete sentences. Remember the rule “Seven by Seven.” No more than seven bullet points per slide, with no more than seven words each. After your slides are created, edit them down. Be brutal. Remove any unnecessary words or phrases, or better still, use a simple graphic to replace information if possible.

  3. PowerPoint is not the star of your show.
    Slides should support what you are saying without taking over. You are the leader of your audience, not your slides. Use them to set the tone and the speed at which information is delivered. As the speaker, it is your job to engage your audience and hold their attention, revealing new information only when you are ready to talk about it.

    Use simple animation to keep your audience from jumping ahead of you. Bring each bullet point up on a single click, introduce it, and then draw your audience’s attention back to you while you elaborate on that point. Don’t try to use too many slides, or too few, in a presentation. One to two minutes per slide is usually a comfortable pace to move at.

  4. PowerPoint is not always necessary.
    Occasionally there will be extended moments, or even several minutes of speaking that won’t really benefit from a PowerPoint slide. You want your audience’s attention only on you. But what about my presentation? I’ve got slides going. I can’t quit now, can I? You can, and you should.

    The smoothest way to make this transition is by inserting a solid black slide into your presentation when the verbal is more important than the visual. This is less obvious than turning off your projector or PowerPoint’s black screen command, as it requires the same single click as your other slides do to advance. You may wish to lead into this period of time with a simple statement or title centered on a slide, but keep it up only long enough to be read, and then go to the black slide. Remember, you are the focus.

The Bottom Line
PowerPoint is a wonderful tool that can prove quite valuable to a litigator when used correctly. It can digest a 200-page document into a single screen of pertinent facts. It can translate complex technology into simple steps a layperson can understand. It can convey in an instant what happened, who was where and what was the end result. But as with all tools, it has its limits. Respect them. Remember that you are the presentation, not your slides. They are a jumping-off point from which you can begin working your magic. Nothing more. Nothing less.

written by Linda Reynen
Litigation Designer

The Art and Science of Jury Selection

October 21, 2009

Any experienced litigator would agree that jury selection is an art and not a science. However, in order to be a good artist, it’s extremely important to understand the science of a jury.

Recent studies on jury psychology have provided litigators with an invaluable look into the decision-making process of jurors. By studying countless mock jury verdicts and analyzing hundreds of actual post-jury verdict interviews, we understand that there are three main drivers that lead jurors to a verdict in a particular case: 1) Likeability; 2) Prior Experiences and 3) Preconditioning. It is an understanding of jurors’ decision-making process that should guide you in your jury selection strategy.

Likeability
First, jurors form decision in a case based upon likeability. Jurors will find for one side or another based upon how much those jurors like you and your client. This long-held belief by many trial attorneys about likeability is supported by a study conducted in Trial Diplomacy Journal. Sanito and Arnold reported on a study of 600 jurors who were interviewed after they had reached a verdict in different cases. The one issue that was similar amongst all 600 jurors interviewed as a reason for why they reached a verdict was that they “liked” the lawyer that they found for more than the opposing lawyer.

Prior Experiences
The second main factor that leads jurors to a verdict are jurors’ prior experiences, attitudes, values and beliefs, and how these factors relate to your case. Again we know from our study of jurors that they enter the courtroom and then filter all information presented to them in the case through these factors. Therefore, jurors are not simply basing their verdict on the facts presented to them, but rather processing the facts through the filter of their prior experiences. For instance, jurors frequently in employment, personal injury or medical malpractice cases spend up to 50% to 60% of their time in deliberations talking about their own personal experiences.

Preconditioning
Jury selection provides the opportunity to precondition jurors to the key issues in your case. We know from jury research that jurors start to form decisions about a case from the first moment that they hear about the case. Jury selection provides us the opportunity to precondition jurors to our case themes.

As mentioned, understanding the science of the jury’s decision making is only half the battle. To be effective in jury selection one must apply the art of jury selection. Below are suggestions that are designed to assist in the art of jury selection.

Likeability
Will they like me? We need to understand that most jurors experience a high level of stress during jury selection. A good jury selection artist will start the jury selection process by making the jury feel comfortable. Each lawyer has his / her own style, and we have seen everything from story telling and jokes, to divulging embarrassing stories about ones self to ease jurors’ nerves. The key is that jurors need to feel comfortable before they divulge their feelings about a particular life experience. It is your job as the questioner to make jurors feel comfortable enough to answer your questions. Remember, its jury selection and not cross-examination.

  • Talk to jurors, not at them, and listen to and care about the responses they provide. Subtly match jurors’ body language, style of speech and tone. Use your personality in any way possible to win over the jury (don’t be obvious about it!!!).

Prior Experiences
De-selection. A biased juror can sway an entire jury to his / her side of the case. You must use voir dire to ferret-out biased prospective jurors. Rather than relying on a person’s demographic background as the sole indicator of whether he / she is good or bad for your case, it’s much more telling to ask jurors open-ended questions to determine their prior experiences. Before you step into the courtroom, know what biases you are looking to expose. This can simply be done by understanding the issues in your case that will trigger a bias in a potential juror. When evaluating these issues in your case, take into account jurors’ prior experiences, values, beliefs and attitudes. Remember, it is better to hear that a jury is biased before a verdict is entered, so don’t worry about “tainting the jury pool” by asking a de-selection question.

  • Open-ended questions: When asking a de-selection question, make sure that it is open-ended. Open-ended questions allow jurors to share their beliefs with you and hopefully divulge information that can assist in de-selection.
  • Reinforce: Complement jurors for giving honest answers that reveal their biases. This will encourage other jurors to also give honest answers.
  • Survey: Immediately after you reinforce, ask the other jurors whether they agree with a particular juror’s response. Your goal in asking for jurors who agree is to identify jurors with similar biases. You should then ask these biased jurors to share their experiences.
  • Confirm: Confirm jurors’ biases and get jurors to commit to their bias. To successfully challenge a biased juror, you must highlight his or her prejudice for all to see.
  • Eliminate: Once you confirm a juror’s bias, they should be struck for cause immediately. Don’t let biased jurors hang around.

Preconditioning:
Key Themes. When the opportunity presents itself, you should attempt to precondition jurors to the key themes in your case. This should not be done by lecturing the jury, but rather by embedding your themes in the voir dire questions. For instance, in a personal injury case where you are representing the defense and one of your main themes in the case is the plaintiff’s failure to take responsibility for his / her own actions, you may precondition jurors to this theme by asking: Does anyone believe that a person should not have to take responsibility for their own actions? Most likely no one on the jury is going to agree with this question. In turn, you have preconditioned the jury to a key theme in your case.

  • Indoctrinate: Remember what jurors told you during jury selection. Use their words, body language, analogies, and stories and reframe them in terms of the stories we want to tell on behalf of our client.

Conclusion
When you approach jury selection with the jury’s psychology in mind, your artistic ability in selecting a jury will flourish. Remember and utilize the three keys to jury selection: 1) Likeability; 2) Prior Experiences and 3) Preconditioning, to give yourself the best chance at winning your case

written by Ron Kurzman
Litigation Consultant / Partner


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