The Perfect Fit: Tailoring Courtroom Technology to Win Cases
There’s a joke that was made popular around 1900 in New York City’s Yiddish theaters that, oddly enough, illustrates a critical lesson about courtroom technology. There was once a man who his entire life had wanted to buy a custom-made suit. After years of scrimping, he finally saved enough money and went to see a tailor. The man carefully explained to the tailor exactly what kind of suit he wanted. When the man finished, the tailor reached over to a rack of what appeared to be 20 identical black suits, randomly grabbed one, and said to the man, “Here is your custom-made suit. Go try it on.”
Although he was a bit taken aback, the man did as he was told. He went into the dressing room and tried on the suit. Not surprisingly, the suit didn’t look good on him. “This suit looks terrible!” said the man. The tailor replied, “The problem is not the suit, it’s the way you’re wearing it. Twist your body to the left, pull your right arm out a bit, hunch your back over, and throw your hips out.” The man did just as he was told, distorting his body to accommodate the suit. After going through the painful contortions, the suit looked great. So the man paid the tailor and hobbled out of the shop wearing the suit.
A few blocks down the street, the man saw two attractive women. He wanted to impress them, so he remembered what the tailor had said, and he twisted his body to the left, pulled up his right arm a bit, hunched over, and threw out his hips. As the two women walked by, the first whispered, “Oh that poor man! What do you think happened to him?” “Beats me,” said the second woman. “But what a nice suit!”
Many lawyers laugh at this story, without realizing that they put themselves in a similar position every time they choose which technology to use during trial. These same lawyers twist and otherwise distort the way they present their case to make it fit a particular form of high technology–regardless of whether that technology is right for the point they are making, the case they are trying, or their personal style. The profusion of trial technology available today means that many trial attorneys are more confused than ever. So it’s up to those of us familiar with technology to help them make better choices.
Most people who criticize high technology get categorized as either cynics or Luddites. I am neither. In fact, my colleagues and I make our livings designing state-of-the-art demonstrative evidence and other teaching tools for use in complex civil and criminal cases. (I’m also a trial lawyer.) Over the years, we have worked on more than 1,500 cases throughout the United States, using every digital technology, from Flash-based platforms that integrate (in a single package) multiple 3-D animations to simple computer-generated graphics. At the same time, we have also coached lawyers on how to best use the blackboard—not only in cases where there was no money for graphics but also in nationally publicized cases in which money was no object and the lawyer could use whatever means necessary to illustrate his point.
Even though we’re capable of creating and running state-of-the-art computerized trial graphics, we have become aware that such graphics are not the be all and end all of courtroom presentations. Instead, we have learned to tailor the visual strategy and technology to each message, each case, and each attorney. Otherwise, the jurors are likely to say, “Oh, that poor attorney seemed so confused. But what a nice presentation.”
How can you begin to choose and use technology more efficiently in the courtroom? Over decades, my company has developed a handful of basic rules to build winning trial graphics. Here they are:
Understand the Two Kinds of Technology
Just hearing the words courtroom technology is enough to scare some trial lawyers. Often, these fears are based on the belief that courtroom tech is something new and entirely unfamiliar, something that involves computers, screens, projectors, and, well, disks of some kind or another.
In fact, presentation technologies existed long before the computer, and there are many kinds of technology that can be used in the courtroom besides computers. As a rule of thumb, I divide courtroom technology into two categories, similar to what you will find in the rock ‘n’ roll world: acoustic and electric.
“Acoustic” (or nonelectric) technology includes blackboards, newsprint, blowups, exhibit boards, and models—all tried and true technology that lawyers have used for generations and that can still be used very effectively in the courtroom. Electric technology includes overhead projectors, computers, videotapes, animations, and Adobe Flash—newer, slicker technology that can be quite powerful for certain kinds of presentations.
So, which is better, acoustic or electric technology? That brings us to our second rule.
More Tech Is Not Necessarily Better Tech
I remember the first time I went up against an opposing counsel who used high-tech graphics. It was during a two-day settlement conference. The plaintiff’s lawyer arrived at the mediator’s office a day early, just to set up the equipment he needed to project his documents and videotaped depositions on-screen. All I had was a flipchart with newsprint and three markers. I felt like I was in the final battle scene of Star Wars VI—the one where Darth Vader’s best-equipped storm troopers take on the short, roundish, hairy Ewoks. (That would be me.)
After 25 years in the courtroom, however, I now know that a flipchart presentation can be just as good—and sometimes better—than a fancy trial graphic. Few lawyers understand this. There’s a common misperception that the more sophisticated your trial technology, the better and more persuasive it will be.
This is not only untrue, it is also dangerous, especially for the two kinds of lawyers. The first kind has an unlimited budget. Such attorneys sometimes think they can rely on technology to cover their lack of preparation. The second kind has no money to pay for expensive trial tools. These lawyers sometimes skip over the process of thinking graphically because they assume they cannot afford to create or present such material to the jury.
Both groups are wrong. Expensive technology rarely covers for lack of preparation. If anything, it tends to make the lack of preparation even more obvious, and—in the eyes of the jury—less excusable. Likewise, avoiding trial graphics and demonstratives altogether (because you think you cannot afford the necessary technology) ignores the fact that some of the most effective trial techniques require nothing more than an old-fashioned blackboard.
Here’s a real-world example. My firm worked as part of the defense team in the rape case against basketball star Kobe Bryant. One of the most effective graphics we developed for the case was a sketch that Mr. Bryant’s lawyer would draw on a blackboard during opening statement. (This was before the charges were dismissed in 2004.) Not only was the information presented this way highly persuasive, but using a blackboard gave the attorney the demeanor of a teacher, which is appealing to jurors. A blackboard presentation tends to capture jurors’ interest—after all, most people like to watch things being created.
Blackboards, like newsprint and whiteboards, also allow attorneys to change or enhance their graphic on the spot, according to what a witness is saying. For instance, if a witness gets confused on the stand, the attorney can quickly create a sketch to get both the witness and the jury back on track (e.g., “So you’re saying you saw the defendant turn left—which would be west—on 23rd Street, right?” or “This gets confusing, doesn’t it? Let’s make a quick timeline of which email messages came from whom and on which dates.”).
Don't Let the Medium Drive the Message
Despite what Marshall McLuhan once professed, the medium is not the message, at least in the courtroom. Nor is the message the medium. The message is what you show the jurors. It consists of two elements: the content of what you want the jurors to remember in your case, and the format that best conveys that content.
The medium is how you convey your message. It is simply a delivery system through which you channel your message. Of the two, the message is always more important than the medium. It’s never a good idea to use a certain technology for your graphic just because you have it. To put it another way, the medium should never drive the message.
Of course, keeping trial attorneys away from computerized graphics can be a lot like keeping teenagers away from instant messaging. You can already hear the choruses of, “But everybody’s doing it!” The easiest way to avoid making decisions based on such reasoning is to follow a basic, three-step, unidirectional process for creating demonstrative material:
1. Determine the Message
Figure out what you are saying, and know what you want the jury to take away. Make sure that your particular message is consistent with the overall theme of your case. Any message that is inconsistent with your theme is unnecessary clutter. No technology, no matter how impressive, will change this basic fact.
2. Design the Format for Your Message
The format is not technology; it is simply the form your message takes. Will the material work well as an enlargement of the primary source material? Would a clip from the deposition work better? Would a checklist be the best way to explain this complex information? Or would a model—or even an animation—be most effective?
3. Choose the Medium That Best Conveys Your Message
Now and only now (that is, after you have determined both the message and the format) can you decide which medium or technology works best. For example, if you have decided that a graphic is appropriate, you may want to draw it on a blackboard. Or you might want to display it with an overhead projector. Or you might even decide that a flipchart with overlays works best. Conversely, you might determine that a chart in which you can take pieces off to reveal important information (and thus build your case incrementally) illustrates your point most clearly. Or you may decide on a chart in which certain elements hyperlink to PDFs, with blowups of important evidence. The point is, there are many different ways to create a format that will convey your message.
To recap, this is a unidirectional process: Following these steps will help you resist the urge to use a particular technology just because your firm invested in it or because the winning attorney at your last trial had the bigger trial-graphic toys. A crummy graphic does not get better by displaying it with expensive technology. It just becomes a more expensive crummy graphic.
Choose Your Technology With Care
How do you decide just which technology is the right one for your case? I generally consider four broad variables. The first is what I call case-specific requirements, which include such factors as the number of documents needed at trial, the number of exhibits, the case budget, the courtroom limitations (Does it have a screen? Is there room for boards?), and the judge’s preferences or limitations (e.g., Can lawyers move around the courtroom? Or does the judge insist that lawyers stay at the podium?).
The second consideration is the impression you want to make with the jury. Remember, some kinds of graphics are more effective when it looks like the lawyer (or witness) creates them on the spot. Such graphics carry a certain sense of immediacy that those in a prepared package do not.
The third criterion is quantity, that is, how many of the graphics need to be displayed at any one time. Certain graphics naturally complement one another, particularly if they are shown simultaneously. For example, I often recommend that a lawyer point to a timeline on a board while a document related to that timeline is simultaneously displayed electronically.
The fourth and final consideration is the personal preference and style of the trial lawyer. A traditionalist may be most comfortable (and effective) using a blackboard or whiteboard; a tech-savvy lawyer may be perfectly at ease navigating a Flash platform loaded with blowups and animations. What matters most is that the chosen medium is a good match for that particular attorney.
Mix Your Media, But Make It Better
My company once had a client who insisted that every piece of demonstrative evidence be printed as an exhibit board. At trial, he ended up with approximately 60 boards. Not only is this kind of approach boring, but it also dilutes your message. When you show jurors a graphic on a board (or a PowerPoint slide, or an animation file), you want them to instinctively understand that you are about to make an important point. You want them to sit up and take notice. If you overuse a medium by putting everything on boards, the jurors are likely to think, “Oh no, here comes another boring board,” rather than “Hey, this is going to be good.”
To keep jurors interested–and to be sure you are using the right technology for the right point–mix up your choice of media. Display some of your graphics electronically, write some on a blackboard or flipchart, and put some on exhibit boards. When done properly, this mixture keeps things interesting and also encourages you to be more creative in the way you explain key facts.
Of course, you should not mix your media just for the sake of variety. Choose the technology that best fits your presentation needs for any particular point in the trial.
Practice, Practice, Practice
It’s amazing how even the simplest presentations can go awry if you do not practice them before trial. In one case of ours, opposing counsel decided to use an overhead projector, with very little forethought. To his credit, he had a colleague run the equipment while he delivered his closing argument, but he neglected to coordinate his presentation with the images being projected. As a result, the lawyer talked about one topic while the assistant displayed something completely different.
The real low point of the attorney’s presentation occurred when he forgot that the overhead projector could display only acetate versions of a document. He handed his assistant a paper copy of a document and insisted she put the image on the screen. The assistant knew that the image on the paper would not appear on the display screen, but she was so flustered by the lawyer’s insistence that she laid the paper on the overhead projector anyway. Of course, the result was a completely blank screen.
This would give most lawyers pause–but not this one. Even though the screen was blank, he repeatedly pointed to it and described the document as if the jury could see it. Finally, the stalwart assistant decided she had to do something, so she bravely took the document and, clutching it in front of her, charged up to the jury box and held the paper within inches of the jurors’ noses. That prompted the judge to interrupt the closing argument and order the assistant to back away from the jury box. The end result was a total disaster–the bumbling lawyer’s client went on to lose more than $200 million.
If this can happen with an overhead projector, imagine what can happen with more high-tech graphics. That’s why rehearsing is so important. A good presentation needs to run smoothly without any glitches so that jurors can stay focused on your message, not your technology.
Ultimately, the trial lawyer’s job is to persuade. Technology can help, but it can never replace the critical process of uncovering the key points of a case and then carefully structuring–and communicating–those points in a way that convinces a jury. One of the worst things that can happen to a lawyer is for jurors to be more focused on the technology the lawyer is using (and the way the attorney twists, turns, and shortens the evidence to fit that technology) than on what the lawyer is saying, who the client is, and what the case is really about.
The technology your firm uses should be tailored to your specific cases rather than being a one-size-fits-all solution. In the end, it should fit the facts like a custom-made suit.
This article appeard in NextGen_Law on February 13, 2009.
Appeared in NextGen_Law
February 13, 2009