May/June 2003  Volume 29, Issue 4
April 2003 Issue
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Technology and the Power of Persuasion
Beyond Bullet Points
by Craig Ball
Videotaped reenactments, process animations, PowerPoint panache. Do you want to put the razzle-dazzle in your evidence presentations? Put technology to work winning your cases. Get digital. Be visual. Thrill the jury and the judge.

Map my genome and you'll find I lack the chromosome that makes seasoned lawyers leery of online calendars, electronic filing, computer forensics and electronic discovery. When the talk turns to ASPs, DVDs, portals and PowerPoint, I'm in hog heaven. Between the cell phone on my belt, the PDA and camera in my pockets and the laptop computer in my briefcase, I'm sporting more silicon enhancements than Anna Nicole Smith.

But does it all make me a better lawyer? Is the ability to connect with a jury and gain their trust, to make a decision maker care, unimportant now? Are the natural storyteller, the memory magician and the tenacious examiner better off hanging up their spurs? Absolutely not. The skills that made Clarence Darrow a legend, Joe Jamail a billionaire and Gerry Spence a household name still lie at the heart of trial practice. You've still got to persuade 10 out of 12, and nothing with 10 million transistors or an LCD screen is going to do that for you.

But just as microphones opened the stage to actors without booming voices, 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, especially while wood shedding witnesses, at video depositions and in mediation. And the presentation technologies that let you add razzle-dazzle to demonstrative evidence are more accessible, powerful and affordable than ever. To prime your creativity, here are some whys, whens and hows of using today's high-impact tools.

Shaping Perceptions: Follow the Leaders
The juror of the new millennium has spent a lifetime in front of the television set, exposed to the world's most sophisticated visual communication techniques. Think about the content of the typical evening news report. Virtually every story is punctuated with pictures and illustrations, often relayed by satellites, analyzed or enhanced by computers and narrated by experts. The production values are state-of-the-art. When programs deal with technical subjects, animation, re-enactment and modeling are dramatically employed to lead the viewer through unfamiliar territory.

Teachers know that it is essential to sustain a student's interest in the material being taught. Accordingly, lecture must be punctuated by visual stimuli to enhance understanding and improve retention. The news media and the advertising industry long ago recognized the effectiveness and mastered the use of images to inform and persuade.

We can learn much from the techniques used by professional educators and communicators. The great trial lawyers are all, first and foremost, 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. Not only do we remember six and one-half times as much of what we see and hear compared to what we acquire by ear alone, but we all hear things differently and generate very different mental pictures based on what we are told. 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 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 video 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.

A product manufacturer's own promotional film can be a valuable weapon in a trial lawyer's video arsenal. In automobile rollover cases, television commercials depicting typical off-road operation have been invaluable in establishing that the vehicle manufacturer not only knew drivers operated the vehicle in a fashion the manufacturer tried to characterize as an unforeseeable misuse but, in fact, the manufacturer actively promoted the vehicle's use in that fashion.

In addition, television documentaries and news shows focusing on scientific subjects are a mother lode of high-quality video and graphics simplifying complex medical and technical matters. Perhaps a Nova or a National Geographic special has already dealt with the particular issue you are seeking to depict. Check to see if your use of a portion of such works constitutes fair use under the copyright laws. (Medical schools are also a promising source for footage of operative procedures.)

The images will vary from case to case, but every case has some images that lend themselves to video-and your fact-finders will find anything more interesting than nothing at all.

Videotaped Depositions
By now, no trial lawyer could be unfamiliar with the use of videotape for depositions. However, it still seems to be largely confined to depositions of medical doctors. 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.

Videotaped testimony intended for extensive use at trial should be recorded by a skilled video professional using broadcast-quality equipment. But that said, video camcorders for personal use have gotten smaller, lighter and cheaper while delivering digital video resolution and excellent audio fidelity. If your goal is to secure footage for a videotape settlement brochure, for pretrial preparation or even for brief use at trial (as in impeachment), you may be able to use a camcorder and do the job yourself.

There are many reasons to videotape a deposition, such as witness unavailability, scheduling difficulties during trial, the desire for pretrial review and evaluation of testimony, to name just a few. In some instances, the reason for videotaping deposition is uniquely tied to the issue of creating effective evidence and demonstrative aids.
For example, the videotaped deposition is a particularly good way to handle witness testimony concerning experiments. Some experiments are ill suited to performance in the courtroom. Other experiments can be safely performed in court, but you may be reluctant to do so simply because even the best-rehearsed experiment can go awry with devastating results. If an experiment goes sour on videotape, it can be successfully repeated or other steps taken to minimize the damage.

Or, why not depose a police officer at the scene of the accident or question a physician in the examining room? Video technology makes this eminently practical and gives the officer the opportunity to show the investigation that was performed and the doctor the chance to demonstrate diagnostic procedures. A similar example would be the deposition of an arson investigator at a fire scene. It's often easier to think of intelligent questions while the investigator is at the scene, and a witness gives more comprehensible answers when the physical evidence is readily at hand. Plus, there's no rule that says a deposition need be conducted entirely at one location. It could begin at one location and be adjourned to another so as to cover other topics.

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 impact of presenting a well-grounded, live-action reproduction of an event cannot be overestimated.

Reenactments run the gamut from amateur handheld video to slick Hollywood-style productions worthy of Steven Spielberg. As expected, the cost of reenactment varies accordingly. 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.

Be aware, however, that the quality of a reenactment heavily depends on the quality of the editing. Take your cue from the professionals: Obtain shots from various vantage points and include a variety of visual elements. Then, spend some money on a skilled editor to pull a coherent story together. Pay special attention to the way in which images are sequenced to make a point, establish a time frame or tell a story.

Do-It-Yourself Digital Video
Even if you've no budget for a video professional, take heart: Mastering the art of editing digital video on your personal computer is a snap-and it costs very little to get started. Perhaps the biggest hurdle to editing video on your PC or Macintosh is 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 like a VHS tape, you will need to buy or borrow a video capture device, which will take the form of either an accessory board added to your desktop computer or an external device connected by USB or Firewire cable. In the latter category is a nifty little gadget costing about $70 called a Dazzle Digital Video Creator. The Dazzle accepts analog video from a TV, VCR or camera and converts it to digital format, ready for editing on your personal computer. Simply play a tape, such as a videotaped deposition, through the Dazzle and capture the segments you expect to use.

Video capture devices routinely come bundled with rudimentary digital video editing software, and a few include full-featured packages. If you run Windows XP, download a copy of the free Movie Maker 2 software from Microsoft ( www.microsoft.com/win dowsxp/moviemaker). This awesome bit of freeware can turn almost anyone into Francis Ford Coppola and makes tasks such as titling, overdubbing and special effects a breeze.

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-the systematic presentation of thousands of illustrations-goes a step beyond video reenactment. It 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-from a microscopic depiction of metal fatigue to a view of developing weather systems from space. It can reveal any point of view, including perspectives impossible in real life-inside a crashing car, above an explosion site or inside of a machine. It can depict an event at any point in time-slowed down or speeded up-and can show events occurring in microseconds or over many years. It permits the reenactment of events too perilous or expensive to physically re-create or involving equipment that may have been destroyed, modified or become unavailable.

Historically, animation has been prohibitively expensive in all but the most compelling cases. But as the processing speed of personal computers has accelerated and the cost of hardware (especially the memory and data storage) has tumbled, the price of animation has likewise declined. Moreover, as more "stock" animated images become part of commercial animation libraries, it requires much less time to develop animated sequences.

PowerPoint Presentations
Another way to add digital dash to make your case is with that ubiquitous presentation workhorse, Microsoft PowerPoint. Other industries have relied on PowerPoint for years. The program is easy to learn and use, and it affords a simple, polished way to present information-jury charges, photographs, deposition excerpts, video clips, animations, graphs and sounds. Changes on the fly are a snap. It's not the only presentation product, and perhaps not the best, but it's the standard by which all others are judged.

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.

Most users of PowerPoint never get much beyond the creation of a routine bullet point talk, perhaps jazzed up with one of the uninspiring or distracting templates that come with the program. However, PowerPoint offers many more functions and much more flexibility. PowerPoint permits the enhancement of documents by call outs and highlighting. You can drag and drop photos, drawings, animated GIFs, sounds and even video right into a PowerPoint slide, then easily reorder and annotate your work.

In addition, 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. Thus, PowerPoint makes sophisticated visual presentation techniques cost-effective in even modest cases.

For simple animation, you don't even need to hire a graphics professional. Instead, just do it yourself. The latest release of PowerPoint delivers a wealth of effective animation tools, moving its production capability far beyond the irritating flying bullet points of prior releases. PowerPoint 2002 supports motion path animation and a smorgasbord of customizable entrance, exit and emphasis effects. New to the application are the abilities to precisely control duration and timing of animation effects and to apply simultaneous "layered" animation effects. Combining these features makes possible animation of complex events, like automobile collisions, process flow, financial transactions, machine operation or chemical reactions. By itself, and especially when paired with a simple drawing and photo manipulation program like Adobe Photoshop Elements or Microsoft Picture It, PowerPoint simply shines as the most effective litigation persuasion tool around. Best of all, it's simple to learn and fun to use. Microsoft PowerPoint 2002 comes as part of Office XP or as a standalone product.

The Portable Office
As technology marches on and multimedia computer equipment continues to tumble in price, it may not be necessary to bring any paper exhibits to court. With a laptop or tablet computer and a digital projector, anything a litigator needs is readily at hand via the Internet, dispatched by your trusted legal assistant back at the office. All your case documents can be scanned, stored on a laptop computer or recordable CD or DVD, and perfect copies reproduced on a portable inkjet printer as needed or put up on a screen for the judge and jury. The long-promised era of wireless, paperless and portable is finally, genuinely here.

Stepping Past Pad and Pencil
The legendary trial lawyers captivated juries with no more than the power of their words and the compelling mental pictures those words painted. The trial masters seemed to require no more "litigation support" than they found penciled between the lines of a canary- colored legal pad. On the rare good day, armed with only a legal pad and toe-to-toe with the jury, you and I can work a semblance of the same magic that made the great ones great. But, in those long twilights between flashes of forensic brilliance, most of us need all the help we can get to reach jurors weaned on television and multimedia. Any lawyer can get that help from the judicious application of some powerful new technologies. So be creative. Try something new and different. Above all, don't bore your fact-finders. As lawyer Billy Flynn sings in the musical Chicago, "Razzle dazzle 'em and they'll make you a star!"

Craig Ball ( craig@ball.net and www.craigball.com) is a Texas trial lawyer and forensic technologist. Board certified as a personal injury specialist, he served for two years as Technology Advisory Chair for the State Bar of Texas and created the MYTexasBar Web portal. He also serves as a consulting expert on computer forensics and e-discovery for lead plaintiffs' counsel in the Enron/Andersen litigation.

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