Studies repeatedly confirm the power of visual imagery in learning. One study, for example, asked students to remember multiple groups of three words each, such as “dog,” “bike,” and “street,” but the students were broken into groups, each of which was directed to apply a different approach in attempting to recall the words. The students who were directed to remember the words by simply repeating them performed poorly on recall. By contrast, the students who were directed to use a mnemonic device (i.e., making visual associations with the three words, such as imagining a dog riding a bike down the street) exhibited significantly better recall.
In another study, participants were asked to learn about the heart and circulatory system. One group was given text and two other groups were given text with diagrams of differing complexity. Both of the groups that received diagrams showed better comprehension. Notably, the simplest diagram led to the greatest increase in comprehension.
For these reasons, high-quality trial graphics and video provide a clear advocacy advantage by more powerfully impressing your messages on the audience and by building credibility through the appearance of preparation.
Making the Most of Graphics and Video
With almost a quarter of the twenty-first century already behind us, trial lawyers have a wealth of experience on which to draw from using digital media at trial, and some reliable guidelines have emerged for making the most of graphics and video with jurors, judges, and arbitrators.
The first is commitment. Using graphics merely as a prop is insufficient. Studies show that achieving the maximum benefit of a visual presentation requires occupying the audience with a continuous series of images and something to look at other than the lawyer. Don’t just use images of documents or pictures when your message specifically addresses them. Instead, seize an immersive approach that makes visuals a constant and consistent component of your communications that reinforces every part of your message. PowerPoint (from Microsoft) or Keynote (from Apple) are two obvious tools for this purpose, and a well-designed, continuously integrated presentation that accompanies an opening statement, a closing argument, or an expert witness examination delivers a far clearer and more memorable message.
Next is selectivity. Graphics are an essential supplement to your presentation or message—but never a substitute. You are not just dumping your PowerPoint or Keynote presentation on your audience as reading material. In fact, perhaps counterintuitively, excessive written detail tends to diminish the effectiveness of trial graphics. Instead, a clear explanation—whether from a witness or the attorney—that supplements a sparse and thoughtfully curated timeline, chart, graph, or image is most visually persuasive for jurors and likely more effective with judges and arbitrators, too. For an opening statement, for example, aim for a single, simple image with a succinct written message to deliver one clear point per presentation slide. Doing so effectively requires generating the visuals in tandem with your script or talking points. The slides should reinforce the message, ideally making it indelible by conveying a clear structure of key ideas and focusing on a single message in each one. An easy way to visually accomplish this feat is by using a different shade of color for each main component of the presentation and by pairing a single image with a short heading on each slide.
Be likewise selective with information you include in timelines, one of the most common visual devices used in trials and arbitrations. Even a timeline should deliver its own focused message reflected in a short header. To achieve this, a timeline generally should be limited to those essential events that frame the story that you are seeking to tell in the way you want your audience to understand it. As you work with the timeline through your witnesses, you will necessarily add context and details that the timeline doesn’t expressly reflect. But the limited number of key dates on the timeline will still serve as reference points for your witnesses and for the jury, judge, or arbitrator.
Finally, preparation. The importance of preparation in trial practice has been a cliché since at least the days of Ben Franklin, who famously observed that by failing to prepare, you are preparing to fail. Yet, the value of preparation in the use of graphics and video in trials and arbitrations cannot be overstated, for at least three reasons. First, preparing visuals for trial or arbitration is a long lead-time activity. Effective graphics and videos usually cannot be generated quickly. Second, thorough preparation conveys confidence and competence. So the most prepared lawyer also gives the appearance of being the most confident and competent. And, third, fumbling with anything at trial, especially technology, annoys jurors and detracts from their perception of your competence. Nearly all jurors prefer to be doing something else with their time and resent their time being wasted. (Many judges and arbitrators report similar feelings.) You can therefore be sure that jurors, judges, and arbitrators appreciate and reward well-prepared lawyers who can seamlessly integrate a continuous use of visuals in their presentations, arguments, and questioning.
Keeping Costs Down
Best of all, these difference-makers can be achieved without busting your litigation budget. Impressive trial graphics that were at one time out of reach for smaller firms or low-dollar cases are now easily attainable—even for a solo attorney just starting out. In fact, PowerPoint is the leading solution for the vast majority of attorneys, with an overwhelming 79 percent of respondents in the 2020 ABA Legal Technology Survey Report reporting that they use it. Stephen Embry, Litigation & TAR, in 2020 Legal Technology Survey Report (ABA Nov. 30, 2020). The next most common software applications for delivering graphics and video in trials, hearings, and arbitration are Trial Director at 26 percent, TrialPad at 14 percent, and Summation at 13 percent. Id.
Diagramming software is another powerful tool that can be used to create flowcharts, organization charts, floor plans, networks, business process diagrams, customer journey diagrams, engineering designs, timelines, and much more. Economical, user-friendly options in this category include Visio (Microsoft) and SmartDraw. Diagramming software delivers the ability to quickly create visuals of all kinds, including cause-and-effect diagrams, comparison graphs, and schematic visuals, conveying complicated facts and issues to jurors, judges, and arbitrators that might be otherwise misunderstood or missed altogether. It isn’t necessary to reinvent the wheel, either. Templates and examples are readily available online, either via the software provider itself or other attorneys and legal professionals sharing how they have used these tools in their own cases.
It is hard to imagine a case that would not benefit from the use of a timeline to transmit important information to a fact finder. While most attorneys likely already have access to at least one software program or app for creating a timeline, single-purpose tools offer other options. One example is TrialLine, a relatively new tool that bills itself as “a cloud-based mediation, trial presentation and storytelling legal timeline software.” It was the winner of TechnoLawyer’s 2020 Top Product Award, as reported by LawSites, and its functionality includes incorporating documents and videos into timelines and staying organized with categories and tags. It is a collaborative tool, allowing multiple users to work on a timeline with the ability to show or hide specific portions of a creation with password protection. TrialLine presentations and those from similar software applications can be made in court right from a tablet.
In fact, as a class, tablet apps are increasingly popular trial presentation tools because they are economical and easy to learn and deploy. One example of a comprehensive litigation software package is Lit Software’s Lit Suite, which includes TrialPad, TranscriptPad, DocReviewPad, and ExhibitsPad. As with other categories of litigation and trial presentation software, robust help options and inspirational examples are available online.
These software solutions and others are just some of the ever-growing range of tools making amateurs look like graphics professionals. Online research comparing features and options is time well spent, as is giving any product under consideration a test drive. A free trial can often be activated directly from the software publisher’s website, making it virtually risk free to try something new. Even if a provider’s website doesn’t advertise a free trial, you can often get one just by asking.
Conclusion
Whichever among these and other widely available and cost-effective software tools you choose, almost any trial or arbitration now can incorporate powerful and memorable visual presentations that leverage the wealth of experience that trial lawyers have gained using graphics and video since the dawn of the digital era.