More Than Pretty Pictures
Just about every lawyer knows the feeling of having a case “in the bag,” only to see it slip away when the jury comes back with a surprise verdict. So while your opposing counsel and party are exchanging handshakes and adjourning for a celebratory beverage, you’re left pondering one thing: Why didn’t the jury get it? The reality is that having the facts on your side isn’t enough—you also need to present relevant information in a clear and concise way so that jurors not only see that your client is in the right, but also so they can advocate on your behalf during deliberations. That’s where having top-notch presentation materials at your fingertips can make a major difference. Fortunately, five basic tips can help you transform your legal expertise into winning graphics—and winning trial strategies.
1. Use the creative process to make more than just pretty pictures
As the old saying goes, a picture is worth a thousand words, but experienced trial lawyers know that creating courtroom graphics is worth far more than that. That’s because the process of developing materials that illustrate the key elements of your case forces you to organize your entire presentation in a logical, understandable, and persuasive manner. Remember that all great graphics—and the arguments associated with them—begin with a blank sheet of paper. An empty page may seem intimidating, but in reality it is one of the most powerful tools that a trial attorney can have. Why? Because by going through the process of fitting your case into a finite space, you are forced to eliminate excess by distilling your arguments down to their most basic elements.
2. Engage in Mental Mining® before you create your first piece of courtroom material
From the very beginning of a case, highly persuasive trial lawyers engage in Mental Mining, which is the conscious process through which you can help your subconscious mind make sense of the overwhelming number of facts in your case. This allows you to clarify what matters most not only in your own mind, but also for the people who really matter: the jurors. By going through the Mental Mining process, you will uncover stories, analogies, and other relevant images that are universally understood. Successful trial lawyers use familiar images to help jurors make sense of complex factual and legal issues that the jurors are hearing for the first time at trial. Mental Mining allows you to think about the facts of your case in a fresh way so that you can make your key points in a way that everyone can understand. If you are representing a landowner who has lost 13,000 hectares of land in a wildfire, it’s a safe bet that no one in the courtroom will have the slightest idea what a hectare is, but just about everyone will be able to relate when you tell them that the fire destroyed an area the size of San Francisco. It’s exactly the same information, but it has a very different impact.
3. Create the tools to arm your active jurors
Even if you don’t have Gene Hackman on your team (a la Runaway Jury), as a trial lawyer one of your primary goals in the courtroom is to make an impression on so-called active jurors. These are members of the jury who, after determining that one side is right, are willing to argue—often long and hard—for that side during deliberations. These are the jurors that convince their peers to vote one way or the other. Getting an active juror to support your argument is crucial, and the good news is that there are tools (graphics and other persuasion devices) you can provide to help them be your surrogate advocates in the jury room. The most important thing to remember is that jurors (like all people) want to get a clear understanding of the facts. Therefore, you need to have a single, coherent storyline that deals with all undisputed facts, regardless of whether those facts are favorable or unfavorable to your side of the story. Presenting a clear chronology of events (such as a timeline of important events) is also an excellent way to help jurors make sense of confusing pieces of information coming at them from all sides. Jurors also want to know why people acted the way they did, so you need to incorporate the parties’ motives into the story, even if they are technically part of your claim or defense.
4. Remember, all great graphics—and the arguments they inspire—share certain characteristics
Effective presentation materials rely on simple, everyday concepts, not obscure facts or impenetrable legalese. Using concepts that are familiar to jurors—not attorneys—is crucial to winning in court, because it’s human nature to try to relate facts and events to one’s own experiences. When you are creating graphic materials to use in court, it’s important to make sure that all of your concepts are memorable. Memorable graphics are easy to remember, clear, and create a buzz in the courtroom. If they’re not, you are wasting your time and—more importantly—you’re wasting the jurors’ time. That’s why every presentation should serve one purpose: encouraging the jury to give a damn about your client and your case.
So, applying these rules, how would you explain the difference between equivalent and identical in a racial discrimination case? Here, comparing these two keys does the trick. As the jury recognizes, the two keys (common and familiar objects) are not identical; but they do the same work, they will open the same doors, they are equivalent.
5. Never let the format of a presentation drive the message
Many lawyers decide how they are going to display their arguments before figuring out the substance of that argument. It’s the equivalent of buying a sports car and then realizing that you really need a vehicle to take four kids to soccer practice. Always determine what needs to be said and then—and only then—decide how you will convey that message to the jury. When you’re figuring out how to display your message, don’t forget that sometimes “old-fashioned” blackboards and flipcharts are more effective than expensive state-of-the-art electronic technology.
This article appeared in the November 2006 edition of Contra Costa Lawyer.
Appeared in Contra Costa Lawyer
October 31, 2006