How to Build the Visual Foundation of Your Case


Screen Shot 2013-10-16 at 11.28.48 AMWe all know by now that we live in a world in which information is delivered visually, and that people learn best when they have visual aids. Attorneys who head to court with demonstratives to show as well as tell their case are at a distinct advantage over attorneys who lack graphics that make their oral and written presentation more understandable and engaging. The question for trial attorneys is, how best can you create visuals for a powerful case presentation—especially if your time and budget are limited?

Last week, I answered that question and showed a three-step plan for creating simple yet effective graphics at a presentation for the Melvin Belli seminar on trial practices, hosted by the Santa Clara County Trial Lawyers Association. This blog post will summarize some of my key points and show a few images as examples. This presentation focused on PI cases, since most of the attorneys in attendance specialized in personal injury, but the steps below can apply to almost any type of case.

The expression of legal issues in a visual manner is open to endless creative possibilities, with the primary goal being to impart information and enhance understanding.

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Attorneys’ Analogies Are A Lot Like My In-laws Dancing At Weddings (Or, Your “Metaphor” Is Actually A Simile)

By Thomas M. O’Toole, Ph.D.

If there is a complex issue that jurors need to understand, I’m a fan of identifying communication strategies that help jurors understand the issue directly, rather than understanding what the issue is “kind of like.” Visual communication should always be the first resort in this scenario. Graphics can simplify an issue much more effectively than analogies and can often do so in a more persuasive manner, while avoiding the risks that analogies and metaphors present. A graphic is not just a pretty picture; it is visual advocacy. Effective graphics break an issue down into understandable parts, capture the logical flow of the issue, and show jurors how it fits perfectly within the legal framework of the case. This is where the slideshow style of PowerPoint can be particularly helpful. It’s not just one picture but a progressive series of pictures that tie multiple items together in a simple and persuasive manner that both motivates and arms jurors to be effective advocates on complex issues during deliberations.

Bottom line, it’s time to put the brakes on the use of analogies and metaphors by attorneys at trial. My aunt-in-law Josephine’s dancing is amusing because we only have to witness it every few years. The same can be said about attorneys’ use of metaphors and analogies: they are best when used sparingly or not at all.  There are many better routes to persuasion that metaphors, and each one starts with visual communication.


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wedding dancing

TED Talks – Elizabeth Loftus: The Fiction of Memory

Memory is a remarkable and fragile phenomenon. Or so says Elizabeth Loftus, a researcher and psychologist whose TED talk is the basis for this blog post.

Memory is an important component of our lives as actors and performers and certainly an important part of the lives of lawyers and their witnesses. Attorneys rely on their clients and their witnesses for memories of events, contracts, their actions and the actions of all the folks who are a part of the trial story. For many years, the research has shown that eyewitness testimony can be remarkably UNRELIABLE. Elizabeth Loftus in this enlightening talk expands on this through her own research.

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Simple Jury Persuasion: Do haters have to hate? It would seem so.

haters-gonna-hateIt’s in our genes. Or at least, in our dispositions. We all know people who are consistently negative. They pick out the negative in every situation and magnify it. Conversely, we also know people who are invariably positive. We call them Pollyanna’s. They are two extremes: the Haters and the Pollyanna’s.

However, those extremes may have a useful lesson for us in teasing out attitudes, values and beliefs–at least according to the researchers whose work we are examining today. The researchers use the example of two very different stimuli: attitudes about architecture and healthcare.

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Is Hiring a Jury Consultant Really Worth It?

by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant

If you are a trial lawyer, would you prefer to know which jurors are going to reject your case after the trial or before?

Why retain a jury consultant before you are ready to pick a jury?  Because you have no control over who shows up and only a limited number of strikes during the jury selection process.  Besides, certain types of jurors are never going to vote your way, no matter what you do. When they reject you, they will do so vehemently (and, if possible, punitively), and they may even take other jurors along for the ride. The only good jury is one that agrees with you, but to know which jurors are on your side requires waiting until the trial is over. Or does it?

You can reliably discover what types of jurors accept or reject your case (through jury profiling) and why they do so..

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jury selection consultant voir dire texas delaware sdny new york

Ode To Summer: Lessons for Litigation


As I think about what I did and learned this summer, stretching (only slightly) there were also many litigation lessons to be found. Here are just a few:

  1. The power of language, or why you no longer need to be afraid of turbulence: Even though I find myself on a plane nearly every week, I’m still a “nervous flyer.” The good news, though, is that I no longer need to worry about “turbulence.” It doesn’t exist.  Apparently, what we have now is “rough air.”  Fantastic!  Rough air isn’t bad, not like turbulence. As a side-note, an hour or so into my most recent flight we hit some “rough air”; turns out it feels just like turbulence. The point is important, though.  Labeling and word choice is critical to the development of an overall picture of an event, issue, or person.
  2. Rules for deposition testimony, or when to act like a 15-year-old boy: If you ever need a lesson on how to act in a deposition,

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Consider How You Come Across With the Volume Off

By Dr. Ken Broda-Bahm:


We know communication is visual and not just verbal. But when litigators think of that, they tend to think of demonstrative exhibits and technology. But what about themselves? As a speaker, you’re making a visual impression as well. Most know the basics: stand up straight, look the jury or judge in the eye, use a few gestures. But in practice, attorneys want to expect that in court, content is king and what we say matters more than how we look when we say it. But some surprising research shows that more than we expect is coming through the visual channel.

The studies use the technique of asking research participants to assess a communicator without the aid of sound. Watching a music competition with the sound off, for example, (Tsay, 2013) both amateur and professional musicians were able to correctly predict the competition winners, and did so at a level that was better than those who heard and those who both heard and saw the performance. Similarly, experimental participants unfamiliar with the candidates were able to identify the election winner after simply watching ten-second silent video clips of a gubernatorial debate (Benjamin & Shapiro, 2009). As with the music competition research, turning the sound on tended to worsen the accuracy.


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Will Being Folksy and Low-Tech Help You Win a Case?

by Ken Lopez
A2L Consulting

low tech trial technology slick folksy

“I generally delegate the preparation of litigation graphics, and I tend to keep things pretty low-tech anyway.”

To be fair, this is the way cases have been tried for a very long time, and the partner had had a great deal of success with this approach. So, what’s wrong?

What’s wrong is that jurors’ expectations have changed enormously in just the last few years. Jurors expect a trial presentation to be polished and more like the nightly news than like a corporate PowerPoint. They expect a trial lawyer to be polished and well-practiced, more like Brian Williams than a dull CLE presenter. This rural Arkansas jury said it better than I ever could when they responded to a question about the use of trial technology by saying, “Today is technology. That’s what it’s all about.”

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A Trial Consutlant’s Thoughts on Presenting Scientific Concepts

by Chris Dominic

As humans, we have the problem of forgetting what it was like to not know something once we know it. Our overconfidence in our ability to communicate information of this sort has been documented in experiment after experiment. Think about back to before you knew what a hasty generalization was. You probably committed this fallacy often and could not have noticed when others did the same. Try and imagine back before you understood the concept of probability. Did the concept of normal distribution seem like magic, a cult belief, or just like gobbledegook?

So what does this mean for the advocate who has to persuade using scientific evidence as a part of their job?

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Staying Connected in Court

Trial techno-whiz Ted Brooks, gives us some great tips on staying connected in court while remaining agile and respectful.

First, ALWAYS turn off any sounds, including the vibrating alert. A buzzing device on a table can be just as noisy and distracting as a ringing bell tone. This applies to your phone, iPad, and even your laptop. Nobody actually wants to hear your Windows login music, or an alert that your portfolio value has just dropped by 10%.
Next, it’s all about the device. If you were hoping to learn here how to make the Judge think you’re not actually using your phone in court (when you are), you are probably going to be disappointed. Forget about your phone. Even if you hold it under the table to secretly type away, there’s something about your posture that makes it quite obvious to anyone (i.e., Judge, Juror, Bailiff…) what’s going on. In fact, a juror might view this as disrespectful, and that you have no concern for the trial. If they can’t do it, why can you? This is not to imply you need to revert to 1980 where none of us were in contact with anyone during trial. There are ways to make it work.

Laptop: Most current laptops do not have cellular data built in, but

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