By Peder Rudling and David Perry
Demonstrative graphics have been used in the courtroom since the advent of the flip chart. Why? It is widely understood that comprehension and retention of information is enhanced when it is conveyed through a combination of visual and verbal methods.A 1992 study entitled “The Weiss-McGrath Report” (McGraw-Hill) found that after 72 hours, participants retained 10 percent of verbally presented information, while those who received the information visually retained 20 percent. But those who both heard and saw (visual and verbal presentation) retained 65 percent of the information.
Clearly, combining visual and verbal tools is the most effective method to convey information – and more important than ever, considering the changing demographics of the modern jury. The average juror today has grown up on a steady diet of MTV, computers and sound bite television, and is accustomed to visual imagery for learning. The changing nature of the modern jury demands that you use all the tools at your disposal to position your case for success.
When your case relies at least in part on expert witness testimony, a foundational element in many of today’s litigated cases, the role of demonstrative graphics is even more important. Experts are called on to provide qualitative analysis and opinions in matters demanding specialized or highly technical knowledge that is not within the average juror’s realm of experience. We routinely expect jurors to understand the complexities of a wide range of technical and sophisticated matters. Imagine listening to an explanation of the proper procedures for open heart surgery in the morning and then being expected to coherently assess all the possible problems which could arise within the scope of such a surgery and assign fault in the afternoon. This is essentially what we are asking jurors assigned to complex litigation cases to do on a regular basis.
Not surprisingly, litigators turn to the use of demonstrative graphics to integrate and convey complicated information to the jury in the most readily understandable manner. Today’s demonstrative graphics are more effective than ever. Advances in multimedia tools and technology have transformed what was formerly a simple visual tool into an array of powerful demonstrative graphics that provide clear and compelling communication. Using these tools to your advantage requires an understanding of the myriad choices available to litigators today. Following are six keys to ensure that you are creating compelling graphics that will help you win your case.
Strategically planned and executed demonstrative graphics are powerful tools that can make your case come to life for the jury. When developed thoughtfully by tenured specialists, graphics can clearly assist the expert in communicating their opinion in a visual context, to help you build an effective, persuasive case and win.
Effective demonstrative graphics can help to bridge the gap between the expert’s testimony and the jury’s comprehension. By melding the visual with the facts, demonstrative graphics will:
Demonstrative graphics help to bring a case to life, either when used in conjunction with expert testimony or to demonstrate the basic facts of a case. But are they really needed in all cases? While clearly a valuable addition to any case, not all cases require graphics to be successful. Following are some examples of where demonstrative graphics can have a critical impact to the case:
Litigators face these situations every day, and a seasoned graphics specialist can be an excellent source of advice. It is often advisable to ask the graphics specialist for their opinion regarding the right tool for the job or whether a demonstrative is essential. The reputable graphics specialist will provide an objective opinion even if it means they don’t get the business at the time.
Once you’ve determined that demonstrative graphics will be part of your case presentation, it’s time to develop your graphics strategy. The selection of the right, impactful demonstrative can make or break a case. Choosing the best demonstrative approach for your case can be challenging, in part because there are so many different tools to consider and methods to employ.
It is extremely important to keep the ultimate goal of the case presentation in focus as you are reviewing your demonstrative graphic options and not get caught up in bells and whistles that do not add value to a case. Remember, the purpose of graphics is to illuminate the expert’s professional opinion, make it understandable to the judge and jury, and improve retention of critical testimony points. To achieve this, you need a graphics specialist who is trained to focus on the expert’s opinion and use the tools in their arsenal to accurately assist the expert in conveying that opinion and information in a persuasive manner.
Many factors go into the selection process. The following checklist will help to ensure that you select a specialist that meets you and your clients needs while delivering effective graphics to help to win your case.
The graphics team includes more than graphics specialists. It is critically important that counsel retain control over all elements of the case presentation, however, assembling the correct team will ensure that the graphics complement the presentation and meet all the needs of the client. At times it may even be important to engage the client in the creation process as well. Other key team players may include a litigation support manager and any technical engineers at the firm who may play a part in the ultimate presentation of the graphics. It is important at this stage to determine if the graphics will be created by the firm with internal resources, by a hybrid of both outside and internal resources, or outsourced to the graphics specialist for the entire process, from creation through presentation.
Will the demonstrative graphics presentation be used in mediation or at full trial? A foundational knowledge of the anticipated use of the graphics will guide you in developing the most effective graphics for your case. There is a tremendous difference in what is permitted within the mediation setting versus what is ultimately ruled admissible in a jury trial or courtroom setting.
Demonstrative graphics at mediation
Courts across the nation are almost universally requiring that, as a mandatory step in the litigation process, parties engage in alternative dispute resolution (ADR). Mediation, the most commonly selected form of ADR, is generally considered to be a party’s best opportunity to resolve a case prior to trial. The process involves meeting in a more informal setting with an impartial decision maker to present each party’s version of the case with the goal of resolving the matter in controversy. In this forum, you can incorporate a much wider variety of presentation methods to explain complex liability scenarios, injury mplications and also communicate all of the information that is necessary to provide the mediator with a clear, persuasive and complete picture of your case.
Demonstrative graphics at trial
On the other hand, if demonstrative graphics are being prepared for trial, the rules of the forum will dictate what will be permitted. It is important to know your audience, the court, the local customs and the rules. Is the use of demonstrative graphics routine in this court and is the court facility equipped with systems designed to facilitate these types of graphics? Investigate the individual judge - are they predisposed to discount or add value to testimony utilizing demonstrative graphics? Will they be more or less likely to permit demonstrative graphics to be admitted into evidence? Are there specific kinds of demonstratives that they find troublesome – i.e., “A Day in the Life” videos? Answers to these questions will help you determine which approach to take. It may be wise, after familiarizing yourself with the specific court, to avoid graphic exhibits which include bold, flashing text or sound effects. These elements may increase the chance that the court will find the graphic argumentative rather than informative. It is always wise to “tone it down” if you anticipate moving to admit the graphics into evidence.
Demonstrative graphics are especially effective at communicating a complicated point that is difficult to explain with words alone or may be useful to clarify a confusing fact issue. As a general rule, if you have trouble formulating your argument into one sentence, a graphics approach will serve you well. Rely on your graphics specialist to choose the right tool for the job. To select the winning approach, your graphic specialist should:
Whether you are considering a still graphic, an interactive exhibit or three dimensional (3D) animation, the right approach is the one that can best help you present your argument and win at trial.
Static or still graphics may be used for many types of cases because they are classic proven graphic formats that communicate well in static form. They also have the added advantage of being the most cost-efficient type of demonstrative graphic. Some examples of effective static graphics are:
Static graphics also permit the compilation of large amounts of information into a format which can be immediately understood. For example, when presenting complex cost of living adjustments and earning capacity for a disabled or impaired worker, it may be overwhelming for the judge and jurors to try to retain voluminous amounts of information. A chart or graph can take that information, compress it and project it over the relevant time period thereby clearly illustrating impact and change over time.
Are there circumstances in which a static graphic tool is not ideal? Certainly. For example:
Interactive timelines or interactive tutorials are effective in creating multi-layered graphic presentations that allow presenters access to many separate, individual exhibits, photographs, transcripts or demonstrative graphics from a single platform. Well-designed interactive presentations
help the viewer understand the multiple relationships between data and exhibits.
For example, imagine an employment compensation case involving hundreds of employees and vast amounts of personal data for each, including hours worked, mileage, time frames and compensation calculations. The sheer quantity of information would be overwhelming, and spreadsheets may not be enough to demonstrate the larger trends that could form the backbone of a case. Interactive graphics can be used to compile the vast amount of relevant data and integrate the matrix of spreadsheets. One solution would be to create a Flash® interface that provides easy access to any data set, in any order. This could be used by the mediator or during presentation at trial. With the aid of this type of interactive demonstrative graphic, an expert can readily testify about the facts and use such an aid to bring along the jury in their understanding of the case.
Animated presentations are highly sophisticated demonstrative graphics which help the judge and jury understand complex facts. They can also be used to present a uniquely intimate view of events and viewpoints, at times even presenting a party’s actual reenactment of events. They are also useful when the triers of fact need to have 360º views of the event, location, technology or injury in question for full comprehension.
For example, consider a case dealing with complex and extensive construction defects. You need to be able to compile information from various media including blueprints, photographs, spreadsheets, engineering reports and testing reports. The vast quantity of information and various forms makes it hard to imagine how it can be efficiently and effectively conveyed to a jury. One strategy is to “bring the whole building into the courtroom.” The solution is two-fold. Simpler damages could be demonstrated in a multipage interactive PowerPoint® presentation format, while more complex issues could be demonstrated with virtual three-dimensional (3D) modeling based on the as-built blueprints. Site inspection photographs and straightforward titles can then be added to the 3D footage.
With these two graphic tools, the architectural and construction experts could effectively explain the nature and extent of the damage and defects as well as the estimated costs of correction. This solution ensures that all information and evidence crucial to establishing a claim is used to maximum effectiveness.
An additional step which is crucial to presenting information using demonstrative graphics is to determine which type of presentation format will be used to launch the graphics. There are two common methods of preparing information for presentation at trial or other litigation presentation – linear or random access.
A linear presentation format is one in which the presentation is developed to follow a predetermined sequential flow. The most common type of linear presentation format is PowerPoint. For anyone who has used PowerPoint, the obvious benefits of the format are the ease of use and stable nature of the format. The weakness in the format is also obvious – this format is not amenable to impromptu alterations. Linear presentation formats are very useful when you have a predictable set of points to make and there is little risk that you’ll have to rearrange the order of your slides. They are often used for opening and closing arguments because they are fully scripted and the presenter is not expected to stray from the pre-determined script.
Random access formats are developed to provide the presenter with the ability to manipulate their entry point into presentation content at random, thereby facilitating spontaneous presentations. These formats are generally preferable within the litigation world, since presenting information and witness testimony at trial is rarely a well-scripted event. The very nature of litigation is unpredictable and it is an ability to adapt the approach that defines the sophisticated litigator. The most common examples of random access presentation formats are TrialDirector® and Sanction®. Both platforms permit integration of demonstrative graphic tools while retaining the essential flexibility required for effective trial presentations. Following are some examples of situations where random access presentations are helpful:
Whatever demonstrative graphics and presentation format you choose, it is wise to remember that the crucial facts must be established and that the technology is to aid in this information exchange. Technology should be employed to clarify information and to facilitate the exchange of that information. Avoid the tendency to get caught up in the flashy nature of a demonstrative graphic tool. If the bells and whistles serve no purpose and don’t aid the judge or juror in comprehension, they should be avoided.
In addition, avoid the tendency to indulge in extraneous issues. Know what needs to be conveyed by the demonstrative graphic and simply convey it. Keeping the demonstrative graphic direct, and at all times positioned as an aid to comprehension, helps minimize unnecessary scrutiny. Extraneous information, including issues not in dispute, may give your opponent the opportunity to open new doors, thereby potentially diluting the impact of your expert’s testimony. It also increases the risk that the judge could hold the demonstrative graphic, or even the expert’s testimony – inadmissible. When using such tools to assist the expert witness in their testimony, it is important to remember that the real objective is to convey the expert opinion, not impress with technology.
The graphics production cycle draws your team together to achieve the mission – to develop demonstrative graphics that effectively support your position and help to win the case. The members – your legal team, your experts and your graphics team – work closely together during this three-phase process.
This initial phase is the time to do your homework – investing a little extra time here is generally advisable. Taking the time to gather and exchange information, anticipate obstacles and carefully plan your project execution will improve your chances of later success. Make sure your graphics team is prepared to:
Establish a relationship with the expert
The graphic specialist should clearly understand their role – to support and clarify the expert’s opinion. During this phase, the specialist should work closely with the expert to identify key technical concepts, process all relevant information and integrate them into the appropriate graphic tool.
Gather detailed background information
Particularly in the early stages of the project, the graphic specialist should listen carefully, take detailed notes and ask specific questions to further their understanding of the objective. A lack of understanding can lead to a muddled approach and even unrealistic cost estimates.
Assemble the case package
A case package is a collection of all the key documents needed for the preparation of the demonstrative graphics, including measurements, photos, tangible evidence, key testimony, discovery documents, relevant pleadings, expert opinions, and any other materials necessary to build an understanding of the case and prepare the graphics. During the assembly of the case package and the resulting integration process, it is normal to encounter piles of documentation, photos, reports and expert opinions. This integration of information is a crucial step in the process. Once selected, a graphics specialist is deemed part of the legal team and is bound by the same confidentiality expectations as any other team member therefore it is essential that parties take care not to withhold relevant information. Withholding information will only prevent the team from creating the most optimal graphics for the case.
Define the goals of the demonstrative graphic
Remember the credo that no graphic is stronger than the argument it conveys. The goal is for the expert opinion to be coherently and persuasively conveyed to the judge and jury. The demonstrative graphic must facilitate this information exchange or it is merely window dressing. For example, if the expert witness is testifying regarding the sequencing of events resulting in a traffic accident the graphics specialist must integrate the expert witness’ opinion on the sequencing of events with all the physical evidence upon which the expert based their opinion including, potentially, scene diagrams, photographs, information on stopping distances and reaction times. The specialist can synthesize this information and suggest possible approaches for presenting this information in the most effective and compelling method.
If the specialist’s suggested approach is appropriate, they will do further research and devise a workable process for creating the graphic. This is a critical stage in the graphics process. Only once the specialist has had the opportunity to digest the background information and return with a graphic design based on that understanding of the material can you be sure that the graphic specialist and you have the same understanding of the case and graphic goals.
Create a carefully defined cost estimate. With the broad range demonstrative graphics that are available, there is a corresponding range of cost. From simple static timelines to elaborate multistage animation sequences, it is wise to keep in mind that the choices and options are almost unlimited, particularly with animation – even while the budgets may not be. A general understanding of budgetary constraints is essential to permit the graphic specialist to target the right methods to the case. It is essential that counsel define the mission, establish the preferred approach and then stay within those carefully defined parameters. Only then can a graphics team promise a defined product at a certain price.
Once the estimate has been approved, roduction begins. At this point, the graphic artist designs visual proofs that seek to convey the information in a clear and engaging manner. If static graphics are called for, the artist will produce timelines, graphs, flow charts or medical illustrations. If animation is needed, the artist will acquire online 3D models, build 3D geometry, place cameras and begin to create other technical materials.
While litigators do not want to delay the process, it is essential that the graphics team / specialist carefully presents and reviews the cost estimate before beginning the production phase. At this juncture, it is essential for the counsel to review the estimate point by point to be sure they fully understand the anticipated graphics approach and the full scope of the project.
If discrepancies occur or changes are required, resist the urge to proceed without an estimate that is mutually agreed upon by the parties. Improvising will likely bring the project over budget. Instead, the production phase should only begin with the written consent of the client and counsel.
It is not unusual to require changes to your graphics after the initial plan has been developed. However, this aspect of the process, if mismanaged, can result in serious miscommunication over direction and costs. Keeping key decision makers in the loop helps avoid the chaos arising from rushed changes at a project’s later stages, budget problems and/or conflicting instructions.
Best practices demand that a change order procedure should be defined and agreed to by the client/counsel and the graphics team in advance. To avoid these risks, consider the following:
- Whenever a client changes the scope of the project, the proposed changes, including required dates and costs, should be documented and signed off for approval by the client, counsel and graphics team. The graphics team should be able to provide a standard format for this process.
- As the case moves closer to trial, it is not uncommon for the graphics development process to become more fluid and fast-paced, involving rapid, continual e-mail
interaction between the graphics specialist and the client/counsel. Change requests are typically included in the e-mail dialogue. It remains essential that the change orders be routed at all times to the appropriate person necessary to approve changes / costs.
- It is always advisable to limit the number of players having direct input into the project. To keep the project on schedule, it is wise to limit the number of “cooks in the kitchen.” In other words, make sure all decision makers are part of the process from the beginning and that those with authority to make changes are clearly identified and limited.
To ensure that the objectives are achieved it is essential for the graphics team to generate clean and accurate proofs for review by counsel and expert. The graphic specialist should invite reasonable change requests from counsel and experts. Always remain mindful of the cost implications involved in making changes. The specialist may need to revisit earlier production steps in response to counsel or expert’s feedback. Once the proofs have been reviewed and approved, the graphics specialist may now generate final deliverable materials.
Demonstrative graphics production costs vary widely, depending on the selected final product and approach. Whatever the cost, an investment in effective demonstrative graphics can be money well spent. For example, it is foreseeable that $15,000 spent on an animation used successfully during mediation can result in successful settlement, thereby avoiding the full costs of trial which can routinely exceed ten times the cost of animation or $150,000. Ultimately, the cost will be balanced by the complexities of the case and the type of graphics presentation deemed most effective.
Whatever your situation, keep in mind that every project is unique. A graphic style which was relatively easy to implement to good effect in one case may involve many more variables when applied to another case and the cost may well reflect that factor. A demonstrative graphic which at first glance may seem easy to create may turn out to be much more difficult, or vice versa. All cases are unique and extrapolating costs over cases is very unwise. Estimating the cost of a complex animation for example is notoriously difficult and is best done after thorough factual review.
Avoid the temptation to ask a graphics specialist or project manager to cut corners and come up with a rough estimate. Instead, to ensure accuracy, trust the process. Proper research is needed to determine the proper strategy and effectively estimate cost. Allow the designated project manager to consult with the graphic specialist team before presenting a cost range. Developing a good trusting relationship with the graphic specialist is the best
way to keep costs in line with the desired end product.
As in any professional business relationship, you should expect a graphics team to deliver a high level of client service. Members of the graphics team should dress appropriately, be polite, professional and on time for all meetings. They should be responsive – by promptly returning all calls and e-mails – and written correspondence should be professional and accurate.
Strategically planned and executed demonstrative graphics are powerful communication tools that help you capture the judge and jurors attention, educate them about complex and sophisticated concepts and persuade them to view the facts of a case in the most positive light for your client. When developed thoughtfully by tenured experts, graphics can be invaluable in assisting the expert in communicating their opinion.
The best litigators are aware of the modern juror’s increasing reliance on visual and verbal information delivery and have embraced the use of demonstrative graphics. The amazing array of technology available to assist attorneys in presenting their case is continually evolving and, while it is wise to adhere to best practices when employing these technologies, attorneys do not need to become the technology expert. The good attorney doesn’t have to know how to create effective graphics but rather how to select the right graphic specialist for the job.