Developing Graphics for Litigation? Ask Yourself This Question….

I was recently working on a case with a long time client, when this question popped into my head: Why does this matter?

We were assembling case themes, and subsequent graphics, for his opening presentation and struggling to condense his 55-slide presentation to conform to a 45 minute time limit.  This client is a well-respected orator, so I had no worries that he would be able to persuade the audience with his dialogue, but I was genuinely concerned that he would overwhelm them with his dense visual presentation. As I culled through the slides, trying to find materials that I could cut, I kept asking myself the same question over and over again: Why does this matter?

Knowing that we had to cut this presentation in order to not overwhelm the jury, as well as get our point across, our goal was to strategically eliminate slides that didn’t hold up to the scrutiny of this imperative question.  We have to remember, that our opening presentation isn’t the time to put on our entire case, but rather provide a road map of why were are here, where we are going and how we are going to get there.  These three questions can easily be answered in less than an hour, through engaging your audience with a mix of an oratory and carefully selected visuals.

If the answer to this question is glaringly evident, particularly with your opening presentation, then most likely need to cut whatever it is you’re looking and save it for later, or not at all.  Remember: our goal in opening is to simply lay the foundation of our story in an abbreviated time frame.

It’s no coincidence that as I’m writing this article, a client (partner at a large NYC law firm) emailed regarding a current matter we are working on.  He had reviewed the presentation, created by two associates, and commented “we need to cut this down; the jury will be asleep in under 20 minutes.”  He knew what his associates should have been asking from the start, and if they did, could have saved valuable time, and money, as trial quickly approached.

 

Why does this graphic matter?  Because it combines three case themes, represents critical data and has an immediately recognized takeaway.

So, the next time you are creating your visual presentation for trial, arbitration, meditation or a hearing, don’t forget to ask: Why does this matter?

If you need assistance with this imperative question, feel free to contact me on LinkedIn or at DMykel@VisuaLexLLC.com

 

How Does the Modality Effect Play a Role in Litigation Graphics?

Here’s a great article, recommended from a colleague, about how the modality effect works in multimedia learning.  If you’re a litigator in the 21st century, this is a must read.

Abstract:

The modality effect is a central issue in multimedia learning [see Mayer (Cambridge University Press, 2005a), for a review]. Sweller’s Cognitive Load Theory (CLT), for example, presumes that an illustrated text is better understood when presented visually rather than orally.

This article also widens the scope of the analysis of moderator variables (e.g. Pace of presentation, Type of visualization, Research group) as well as their potentially confounded effects. Finally, it is argued that, for theoretical reasons, the so-called modality effect cannot be based on Penney’s or Baddeley’s theories and must be explained in a different way.

See the entire article here: http://link.springer.com/article/10.1007%2Fs10936-011-9180-4

Journal of Psycholinguistic Research

Simplify and Emphasize in Litigation Graphics

By

Rendering dropwise addition photo

In oral argument, a litigator has very limited time—she needs to hit the high points and move on. She must communicate enough information to convince the judge or jury of her argument, yet must avoid getting mired in details that will only confuse.

Good litigation graphics can counter this time crunch by allowing an attorney to communicate clearly and quickly. The adage “a picture is worth a thousand words” reflects the truth that our brains quickly process and understand images.

To support an argument, graphics should be tightly tied to the key points of the advocate’s message.

Read more here:

http://cogentlegal.com/blog/2013/10/simplify-emphasize-in-litigation-graphics/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+CogentLegalBlog+%28Cogent+Legal+Blog%29

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.

 

Read more here:

http://soundjuryconsulting.com/blog/?p=85

wedding dancing

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?

Read more here:

http://scienceinthecourtroom.com/index.php/guest-commentary/51-christopher-dominic-a-trial-consultants-thoughts

Know Your Fallacies When Presenting in Court

By Dr. Ken Broda-Bahm:

8422937464_0cf2949c72_z

Remember the list of fallacies? For many of us, it might fall in the category of things we learned at one point in our lives, probably in a logic or communication class, and then mostly set aside in our practical lives. After all, it can seem a little pedantic, or even arrogant, to call them out. “Hey, that’s a fallacy!” isn’t likely to work when examining a witness or persuading a jury. You could point out, “Your honor, opposing counsel is resorting to the common tu quoque or, ‘you too’ fallacy, in pointing to my discovery behavior in order to defend his own.” That isn’t likely to get you very far either. So is it worth it to remember and use the fallacies at all?

Some Common Fallacies of Legal Persuasion

Fallacies are ways of arguing that seem to offer proof or persuasive merit, while not actually contributing support. In that sense of being pleasing counterfeits, they’re as much psychological as they are logical. Here are the ones that I think are most common in our context.

Post Hoc Ergo Propter Hoc: ‘After this, therefore because of this’ or, as the book refers to it, ‘Not a cause, for a cause.’

Shortly after the product redesign, that’s when the complaints and incidents started to occur…

Read more here:

http://www.persuasivelitigator.com/2013/09/know-your-fallacies.html

Displaying Patent Language in Patent Litigation

By

As lawyers, we are always arguing about documents, and we often need to display those documents in court. In patent cases, displaying documents is particularly important because the patent’s language describes the invention. In today’s post, I’ll talk about how to display this language in an understandable, readable and trustworthy form for the judge or jury.

Importance of the Patent’s Language

The primacy of a patent’s language comes from the patent statutes. For example, 35 U.S.C. § 112 requires that inventors describe their inventions fully and clearly, and that they point out their invention in the claims:

In light of the key role of patent language, patent litigators often need to display patent language in court to argue about the meaning of the language.

The Three Requirements: Understandable, Readable and Trustworthy

Whenever you display document language in court, you must make sure that (1) the audience understands what is being shown; (2) the language is readable; and (3) that the judge and/or jury trusts that you are displaying the language accurately.

Displaying Your Patent Language: Slides vs. Live Presentation

How do we recommend presenting patent language? First, you need to decide if you will be presenting prepared slides, or showing magnified documents live on Trial Director, Sanction, an Elmo, a poster board or another live display technology in court. There are advantages to both approaches. In this post, I’ll assume that you have decided to use pre-prepared slides of patent language, and save for another day the discussion of Trial Director or Sanction versus prepared slides.

Read more here:

http://cogentlegal.com/blog/2013/08/displaying-patent-language/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+CogentLegalBlog+%28Cogent+Legal+Blog%29

Patent Language Display Sample

Looking to Engage Multiple Audiences at Trial? Try this…

By Dr. Ken Broda-Bahm:

6759867371_441842c1a7_b

If you returned with me to Shakespeare’s original theater, the Globe in London around 1600, you would notice one important architectural feature: There is a gallery and there is a pit. The gallery, the seats in the bleachers that ring the outside of the theater, are the pricier seats occupied by the more well-to-do theater goers. The pit, the straw-covered floor of the theater, is where the less affluent would stand and watch the show. Based on this class difference, there is also a difference in the kind of show that each audience wants to see….

A recent panel at the ABA Annual Meeting in San Francisco focused on what Shakespeare had to say to lawyers (it turns out the ‘first, kill all the lawyers” thing is presented as a route to tyranny). I wasn’t able to attend, but I do wonder if the panel touched on this “multiple audiences” lesson from Shakespeare. Litigators addressing a jury have the same need for complexity in focus. But in addition to addressing differences in social class, age, education, race, and gender, attorneys are also speaking to differences in whether jurors are naturally favorable or naturally skeptical of your kind of case.

Read more here:

http://www.persuasivelitigator.com/2013/08/learn-from-the-bard-engage-multiple-audiences.html

Ask a Mentor: The Importance of Listening

By Edward Romero – January 15, 2013

Many skills are needed for trial work. One that is often overlooked is the art of listening. As the late Dean Rusk reportedly said, “the best way to persuade people is with your ears—by listening to them.” This is good advice from a former lawyer, Rhodes Scholar, and the longest-serving United States secretary of state after Cordell Hull.

Like peeling an onion, understanding a case often consists of exposing multiple layers of long-forgotten facts that, when revealed, can be distressing, embarrassing, and emotionally painful. No one enjoys revealing secrets, especially those that are humiliating or that can lead to social stigma or imprisonment. Yet, a trial lawyer must do just that: glean from reluctant clients intimate and unpleasant facts that are needed to represent them properly. This is achieved by developing trust, and the best way to do this is by listening. People with legal problems want to talk. And the more they talk, the easier it becomes for them to disclose secrets and reveal confidences that have remained hidden, sometimes for years. In so doing, a client will develop confidence in his or her attorney, not because of the attorney’s experience in the subject matter, but because the attorney has taken the time to understand the client’s concerns and listen to the client’s fears. The attorney has become a confidant and, in so doing, has developed a trust with a client that might otherwise have taken a long time to develop

Read more here:

http://apps.americanbar.org/litigation/committees/minority/articles/fallwinter2013-0113-ask-a-mentor.html

The Perils of Arrogance in Preparation

By:

Trial attorneys, by nature, have (or at least display) a great deal of confidence.  It’s an essential component of the job. Success in the courtroom demands confidence.  And this confidence is well-earned. After all, you must be doing something right to be where you’re at in your career. But don’t let that confidence create unnecessary barriers. A law degree is not a certification in effective communication.  Thinking through an idea is a fundamentally different task than communicating that idea. Attorneys supremely capable of the former still struggle with the latter, perhaps because communication is so fundamental to our existence that it’s easy to assume we are naturally skilled at it.  That would be false. Perhaps we tend to forget that, while our own ideas are immediately and clearly accessible to us in our minds, they need to be packaged as best as we can in words and images for others to  understand. The challenge is akin to trying to share with a friend the experience of viewing a Picasso by merely describing it to him or her. Even the best words fall short.  Here’s three areas where effective communication often departs from effective strategy at trial:

Read more here:

http://tsongas.com/blog-posts/my-38-minute-5k-and-the-perils-of-arrogance-in-preparation-buy-now-and-get-a-free-zimmerman-epilogue-and-keychain/