Is Your Case Worth Displaying?
Let me start by assuring you that I have nothing against using high-end technology in the courtroom. Like many who read this column, 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. Why is it so important for me to let you know this? Because I want you to fully appreciate where I am coming from when I state the major premise of this article: We need to help trial lawyers make better choices when it comes to how they display material in court. An increasing number of lawyers are relying on high-end technology as a crutch and using these display methods without thinking about whether it makes sense to do so or whether their cases are better as a result.
Some lawyers believe that all the money spent on technology can substitute for carefully preparing their case. These lawyers forget a basic truth. They forget an ill-conceived message does not get better merely because they display it using high-end technology. The only thing that lawyers get when using expensive technology to display a crummy message is a more expensive crummy message.
When it comes to using technology in the courtroom, I suggest we urge trial lawyers to follow three basic rules that will improve a case no matter its size or subject matter.
First Rule: Never Let the Media Drive the Message!
Despite what the social critic Marshall McLuhan said, the media is not the message. Likewise, the message is not the media. You must never confuse the two. The message is a what—it is what you want to show the jury. It is the substance; it is content. The media is a how—it is the delivery system through which you channel your message. Of the two, the message is always and must always be more important. You must always first develop the message (the what you want to teach) and then, and only then, pick the media (that is, decide how to display that message).
To emphasize this point, I often tell my clients a story.
There once was a man who wanted to buy a custom-made suit, so he went to the tailor and told the tailor in great detail exactly what he wanted. Without even looking up from reading his newspaper, the tailor reached over and randomly grabbed a suit from a rack of what appeared to be identical black suits and said, “Here is your custom suit.”
“Wait a minute,” said the customer. “Don’t you have to at least measure me?” “No.” said the tailor, “Just trust me and put on the suit.”
The man put on the suit and (not surprisingly) he looked terrible. The right sleeve was too short; the left one was too long. There was way too much room in the backside and yet he could barely button the pants at the waist. “This suit looks terrible!” said the man.
The tailor looked up from his newspaper and said, “It is not the suit. It is the way you wear the suit. Twist your body to the left, pull your right arm out a bit, hunch your back over”– The man did as he was told, distorting his body every which way. And, guess what–after he did so, the suit looked great. So, he bought it and hobbled out of the shop wearing the suit.
A few yards down the street he passed two women. The first said, “Oh that poor man must have been in a horrible accident. His body is twisted to the left, his right arm is all pulled out, and he is hunched over.”
“Yes,” said the second woman, “But what a nice looking suit!”
Many trial lawyers laugh at this story and at the same time better understand that they must never become that uncomfortable man in that ill-fitting suit; they must never twist and distort a trial graphic’s message to fit within a pre-chosen display technology.
How do you comply with this first rule and never let the media drive the message? I suggest that my clients follow three steps, which they must do in this exact order.
Step one. Determine the message. Figure out what are you saying; know what you want the jury to take away. You need to make sure that your particular message is consistent with the overall theme of your case. Any message that is inconsistent with your overall theme is unnecessary clutter.
Step two. Design the appropriate format for this information. When I speak of format, I am not talking technology–we are still not at that point. When I talk format, I am talking about deciding if the material works well as a checklist, or a map, or an animation, or a timeline, etc.
Trial lawyers are often surprised to learn that the two most important tools for accomplishing these first two steps cost less than a dollar–a pencil and a piece of paper. Never underestimate the power of a single sheet of paper. A sheet of paper has boundaries–the four corners of the sheet. For reasons that I do not fully understand, limitations often force the brain to be more creative not less. By definition, you cannot put everything on a single sheet of paper. You must winnow away your content until you are only left with what is really important. With apologies to The Rolling Stones, I will often remind my clients, “You can’t always fit what you want – but, if you try sometimes, you can fit what you need!”
Step three. Finally, after you complete the first two steps—determined the message and determine the best format to convey that message—decide what media or technology works best. Do not proceed to step three unless and until you have done the first two steps.
Second Rule: Remember, There are Two Kinds of Technology
There are technologies that require electricity and those that do not.
When trial lawyers hear the phrase courtroom technology, many assume that this includes only screens, computers, digital files, and similar equipment. You need to assure them that this is too narrow a definition. Courtroom technology includes not only this type of equipment but also simple and powerful tools such as blackboards, newsprint paper, and blow-ups—tried and true technology used for generations.
It is important for trial lawyers to understand this for two reasons. First, some lawyers (usually those who are younger and more technically sophisticated) need to be reminded that technology that does not have an electrical plug attached to it is better than the state-of-the-art equipment that does. For example, blackboards allow for spontaneity and furthers the perception that the lawyer is a trusted teacher. Likewise, exhibit boards can be left up throughout a trial; their messages are less ethereal than those projected electronically for just a second on a screen.
Second, some lawyers (particularly those who are older and less technically savvy) need reassurance that the rhetorical skills and persuasive techniques that they developed using flipcharts work just as well using pieces of equipment farther up on the evolutionary scale. When trial lawyers realize this, they often respond like the fictional character who upon learning the definition of prose, exclaims with relief, “For more than forty years I’ve been speaking prose without even knowing it.”
Third Rule: Mix Your Media
Have your choice of media mean something.
I am a firm believer in encouraging trial lawyers to mix their choice of media. I encourage them to display some of their graphics electronically, to write on a blackboard or on newsprint paper, to use exhibit boards to display a key timeline, etc. When done properly, this mixture not only keeps things interesting but also encourages trial lawyers to be more creative in the way they explain key facts.
Consistent with the First Rule of never letting the media drive the message, do not mix your media just for the sake of mixing; instead, have the choice itself mean something.
For example, while it is possible to put every single document and trial graphic on a foam board, do not do so. When you show a jury a graphic on a board, you want them to instinctively understand that: “This must be very important or why else would the lawyer bother to go to the extra expense and bother to blow it up on a board.” When you reach for a board, you want the jurors to sit up and pay particular attention. If you overuse this medium by putting everything (important and not so important) on boards, the effect will be diluted.
A trial lawyer’s job is to persuade. Technology can help with this process, but it can never replace the critical process of uncovering the key points of a case and then carefully structuring these points in a way that convinces the jury that your client’s position is the correct one. Following the above three rules will go a long way to accomplishing this goal.
This article appeared in the March 2005 edition of LJN’s Legal Tech Newsletter.
Appeared in LJN's Legal Tech Newsletter
February 28, 2005