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.”  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.”  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
- Presenting Effective Presentations with Visual Aids
U.S. Department of Labor, OSHA Office of Training and Education
- Theories of Learning in Educational Psychology
Allan Paivio 1941 – Dual Coding Theory
- 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
- Enhancing Expert Witness Trial Testimony: Collaboration Between Testimony and Technology
Timothy A. Piganelli
- Multimedia Information and Learning
Lawrence J. Najjar, School of Psychology, Georgia Institute of Technology. 1996 Journal of Educational Multimedia and Hypermedia