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October 15, 2018 Practice Points

Five Key Principles in Effective Trial Graphics

How to grab the jury’s attention

by Katie L. Dysart and Michael W. Young

As technology advances, so do juror expectations. Gone are the days where a whiteboard and a few blown up photographs were sufficient for one’s closing argument. With each update on an iPhone or Android, fact-finder expectations evolve and it is up to the practitioner to evolve with those expectations.

This new dynamic, however, should be viewed as an opportunity, not an obligation. The world has opened for the creative trial attorney to leverage available technology in preparing demonstratives that tell a story and convince a fact-finder.

Budget for Clean and Creative Design

It is critical to plan and budget for the use of creative demonstratives. Although technologically driven demonstratives are not prohibitively expensive, they do cost money. Many experts are now adept at creating technologically advanced demonstratives, such as accident reconstructions, and where an expert is not as familiar, services are willing and able to fill the gap. Critically, if there is no budget for clean demonstratives, then do not use them. A case can be fatally harmed by use of an unclear or overly rudimentary demonstrative.

Case Considerations

A foremost consideration in creating a demonstrative is whether it will help simplify issues for the jury or not. If a demonstrative is overly complex or involved, it will likely complicate critical issues and confuse the fact-finder. Effective demonstratives distill critical case themes, leaving a favorable impression with the judge or jury.

Do not overuse demonstratives. Effective demonstratives should serve as an exclamation point for testimony or argument. Overuse of demonstratives can render their use less appealing and take away from critical testimony or argument. Demonstratives should always serve to emphasize, simplify, and focus important parts of your trial story.

Build Graphics off Position and Case Strategy

Skilled storytelling is a key skill of any great trial lawyer. In today’s digital age, simplified technology has reached all facets of life, from ordering groceries to depositing checks. It is not surprising that jurors process information through visual graphics. While technology has reached most courtrooms, it has not uniformly transcended beyond the use of the “Elmo.”

Whatever technology your courtroom utilizes, you can almost be certain that some form of trial graphics will be permitted. There is no trial tool more effective than strategic visuals.

Your trial story should be the essence of your client’s position, boiled down to a few retainable themes that can be visualized and easy to process in the graphic. The graphics should relay the main themes of your position in a memorable way. What is your trial story outline? What are the titles of that outline? And are there any graphics/visuals that you wish to impress upon the judge and/or jury in favor of your position? A clear position at trial, with a focused graphic(s), will lend to effective story-telling at trial.

Keep it Simple

Keep in mind that jurors are laymen called upon to analyze the law in the context of the facts at issue. Use simplified, easy to process themes to tell your story through trial graphics to assist the jurors in organizing and making sense of this data. The more complicated the graphics are, the more likely you risk confusing the fact-finder. The juror will not be able to retain jam-packed graphics. Trial themes strategically placed on simple graphics will enable the fact finder to retain the data through deliberations. Your case may be complicated and complex, but your graphics should not be.

Refine/Revise if Needed

If there are surprises at trial, do not stick to the graphic if it needs to be tweaked; either refine, revise, or do not use it. In order to effectively use trial graphics, it is important that the data remain fluid to adapt to actual trial. You may start out with three themes, but by the end of the trial, end up with five themes or pieces of key information you want the jury to retain. Ensure you keep the jurors’ attention by adapting your graphics during the course of the trial. The final execution of your trial story/theme(s) may end in a way that you did not originally anticipate. Good practice mandates an evolution of the trial story or theme(s) when necessary based on your observation and research of your jurors from voir dire through deliberations.

Katie L. Dysart is a shareholder at Baker Donelson Bearman Caldwell & Berkowitz, PC in New Orleans, Louisiana.

Michael W. Young is a shareholder at Parsons Behle & Latimer in Salt Lake City, Utah.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).