GPSolo Magazine - March 2004
Technology And The Power Of Persuasion
New technologies amplify our abilities as litigators— they help us be more productive and more persuasive. Consider the power of presentation technology. How would you like to be six and one-half times more effective in court? You can be, instantly, simply by capitalizing on the fact that jurors retain 650 percent more information when they acquire it by the combined use of testimony and images versus testimony alone. Demonstrative aids work magic in the pretrial process as well.
Shaping perceptions: Follow the leaders. We can learn much from the techniques used by professional educators and communicators. The great trial lawyers are, first and foremost, all skilled teachers and communicators. We must follow the lead of the media and educators and meet the expectations of jurors by our own use of innovative and interesting approaches to the presentation of evidence.
The juror’s “mental picture” of events shapes the juror’s perception of the evidence. The lawyer who equips the juror with an image of the events supporting the lawyer’s theory of the case enjoys a significant advantage. With that in mind, a trial should be seen as a battle of images rather than words.
It’s also critical to remember that the trial lawyer’s greatest enemy isn’t always the opposition, the judge, or even the facts of the case. The real enemy in every trial is boredom. Jurors always complain about the tedium of a trial. Judges get terribly bored, too. The easiest antidote for juror boredom and one of the best ways to gain the interest of the judge is creative demonstrative evidence.
And remember, it doesn’t matter how effectively we communicate a point if the jury doesn’t recall it when they retire to render their verdict. Demonstrative evidence dramatically increases the sticking power of information. To win, your side must put your picture of the case in the jurors’ heads first—and you must reinforce that picture wherever you can. The evidence has to fit somewhere within the juror’s mental picture, or else the juror may mentally discard it.
The evidentiary techniques that will enhance the presentation of a case are as varied as the types of matters that can be litigated and are limited only by the imagination, resourcefulness, and budget of the lawyer. Following are a few of the ways that new technology can be used to enhance the presentation of evidence.
The moving image. Videotape in the courtroom remains underutilized, but it continues to prove itself one of the most important media for jury communication. Since the equipment is affordable and the audience receptive, video should be a part of every lawyer’s repertoire.
It isn’t always necessary to reinvent the wheel. A wealth of high-quality film and videotape evidence may already exist and can be used in your case “as is” or with a little inexpensive modification. For example, industry and the federal government regularly churn out a variety of instructional videos that could be helpful in demonstrating the operation and installation of a product, machine guarding, safety techniques, presence or absence of warnings, vehicle crashworthiness, typical working conditions, and a host of other issues.
Videotaped depositions. Admittedly, it can be costly to videotape all depositions, but if you are handling a case with substantial sums at stake, you can’t be afraid to spend money to gain an advantage over your opponents. Any videotaped testimony intended for extensive use at trial should be recorded by a skilled video professional using broadcast-quality equipment.
There are many reasons to videotape a deposition, such as witness unavailability, scheduling difficulties during trial, and the desire for pretrial review and evaluation of testimony. In some instances, the reason for videotaping a deposition is uniquely tied to the issue of creating effective evidence and demonstrative aids.
Reenactments. A videotaped reenactment of an event can be extraordinarily persuasive. The members of the jury become eyewitnesses to the event and see it happen just as your side contends. The cost of reenactment varies. If your case development budget won’t sustain a professionally produced extravaganza, a reenactment filmed with your home video camera and co-workers, friends, and family serving as your actors will still enable the jury to see an event as you see it. In fact, the look and feel of amateur “eyewitness” video may convey greater realism than a more polished piece. If a reenactment is intended for the jury, one or more sponsoring eyewitnesses or qualified experts are essential and must be involved in staging the reenactment to ensure that it fairly and accurately represents what the witnesses experienced during the actual event.
Do-it-yourself digital video. The biggest hurdle to editing video on your PC or Macintosh may be getting the video digitized to a computer-compatible format. If you own a digital camera, your video is already in a digital format, and you can simply hook up a transfer cable between camera and computer and go. However, if you’re starting with an analog source such as a VHS tape, you will need to buy or borrow a video capture device.
Hint: Use video editing software to liven the presentation of still photos. Pan, zoom, and transition effects can bring static snapshots to life.
Animation. Animation continues to revolutionize the presentation of medical and technical evidence. The only limit to the use of animation is your imagination and your budget. Animation can demonstrate a process at any scale and can reveal any point of view. It can depict an event at any point in time and can show events occurring in microseconds or over many years. It permits the reenactment of events too perilous or expensive to physically recreate or involving equipment that may have been destroyed, modified, or become unavailable.
PowerPoint presentations. PowerPoint is easy to learn and use, and it affords a simple, polished way to present information. Plus, the thought processes that go into framing a PowerPoint presentation for trial or mediation will make you a better advocate. PowerPoint forces a presenter to focus on a coherent, linear presentation, while helping you to define and identify the key points of your case.
A little-known but powerful feature of PowerPoint is its ability to hyperlink any word or image in a presentation to any other slide, and even to external items such as web pages or software applications. Using its hyperlinking capabilities, you can manage and present all of the visual and documentary evidence in your case in much the same fashion as a much more expensive case management program.
Craig Ball practices law in Montgomery, Texas. His website, www.craigball.com, offers quick access to the major search engines, major telephone databases, and an eclectic compendium of discovery links and investigative resources.
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