March 7, 2013

Follow the Ten Commandments of Graphics Use in Trial

By Dr. Ken Broda-Bahm: 

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A recent blog post written by a juror in the trial of Jim Fayed, a gold trader convicted of arranging the brutal murder of his estranged wife in a Los Angeles parking garage, included some rather colorful descriptions of the prosecutor’s use of demonstrative graphics: 

…And then there were the assistant DA’s unnecessarily omnipresent PowerPoint slides. 

Here are some actual quotes:
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“If Jim Fayed didn’t do it, who did? BATMAN?” Click: Batman slide. 


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“The defense is offering you a buffet of explanations.” Click: buffet slide.
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Really?! The assistant DA’s favorite PowerPoint slide of all, though, was a red herring dropping down the screen on a string and then bouncing. He used this Monty Python-esque bit of goofery over and over and over again (mentally cue the sound effect: doy-oy-oyooiiinngg!) without regard for how sad or serious the current murder testimony was. When you find yourself more disturbed by the tactics of the prosecution than by bloody crime scene and autopsy photos of the victim, something’s really wrong. 

Something’s wrong indeed, and the juror’s reaction is understandable. Effective trial presentation is an art, and litigators should use every effective tool at their disposal to practice and hone that art. But when the techniques call attention to themselves is when “art” becomes “artiface.” Some would point to this example and say, “See! This is what happens when litigators wed themselves to PowerPoint and other presentation crutches in opening and closing.” But the problem in this case is not the use of visuals and PowerPoint, but the way they’re used. As with anything that happens in a courtroom, graphics in trial need to be used by attorneys with some good sense and some taste. The “goofery” this juror, Jean Black, perceived got me thinking about the larger point: What are the conditions for the sane and responsible use of imagery in courtroom presentations? So drawing from this example, and also going a bit beyond it, here is my quick list of the top ten commandments for trial graphics. 

 

1. Thou Shalt Honor the Dignity of the Court

This must be the top takeaway from the story told above. There is, and should be, a solemnity to a courtroom: a hush that makes it quite a bit like a church — a cathedral of justice in this case — so don’t do anything you wouldn’t do in church. And yes, I’m talking about those quiet and somewhat stuffy churches, not the ones where you can shout, dance, or handle snakes. The actual parameters of what is going to be perceived as fitting and what isn’t, will naturally enough depend on your judge and your jurors, but I’ve found that a good rule of thumb is this: If you find yourself wondering whether it would be appropriate to do something in court, then it probably isn’t appropriate. 

2. Thou Shalt Honor the Tone of the Case

Beyond lacking a certain dignity in court, the silly visuals described above are also a problem because they don’t fit the tone of the case: A tragic and brutal murder should not be illustrated with humorous clip art. This is where the progressive desensitization of an urban prosecutor might be playing a role in causing him to forget that, to the jury, this is not entertainment and not a game, but is the closest thing to justice on earth. That doesn’t mean humor and lightness is never appropriate. Depending on the content of the case, it could be fitting. But it fits another rule of thumb that I’ve written about before: Planned humor in court almost never works. The funniest moments — and there are some — are nearly always unplanned and spontaneous. 

3. Thou Shalt Shun Artifice Over Substance

The problem is not the use of technique. After all, good persuasion boils down to techniques. The problem occurs when you shine a spotlight on it:  “Hey, look at my technique!” The same can happen when you, for example, choose a trial theme that rhymes (Johnny Cochran not withstanding). In graphics use, that means that thou shalt not covet PowerPoint’s bells and whistles (like slide animations, transitions, and – God forbid – sound effects) which have no relationship to the substance of the point you are trying to make. That is true not just for court presentations but for CLEs as well. Visuals that illustrate the points being made are great, but mere accompaniments, like those described above, are too cute by a long shot. Another rule of thumb: If you find yourself using clip art, then you just may have left the substance of the presentation behind. 

4. Thou Shalt Not Artificially Disparage

Part of what makes visuals a good idea is that they allow you to represent the other side to some extent. But remember this: Make sure that based on these visuals, the jurors and judge will believe that you are representing the other side fairly and accurately. I remember one recent case where our graphics department was tasked with producing an organizational chart with photos and titles for all of the executives on the other side of the case. Our designer was just given deposition video and told to find a representative still image for each. Initially, and I think for humor’s sake, she picked the single worst face for each person so the final product looked like a series of mug shots for some very disturbed individuals. It was funny…then we revised it to include representative (not flattering, but representative) photos for each. It can be tempting to tilt the table a bit when creating graphics, but the potential loss of credibility isn’t worth it. 

5. Thou Shalt Not Fumble Nor Take Chances with Technology

Of course, good visuals require a presentation system, and increasingly that has meant computers and other technology. I’ve met more than a few lawyers who feel that it is humanizing for them to admit to their lack of knowledge about computers and technology. But I’ve come to feel that as the jury pool becomes more and more attuned to effective visuals through school, television, and the internet, the “techno-novice lawyer” shtick is dated. If you aren’t facile with the technology in the courtroom then bring someone who is. Even if you are capable of running it, I usually say “don’t.” That’s because an attorney’s attention should be focused like a laser on the jury, the judge, and the other side — not on the keys or the touchscreen of an electronic device. 

6. Thou Shalt Have a Foundation

Your graphics can be a favored tool for your expert witness, and in our experience, any graphic that is technical and extends to the substance of the expert’s opinion should be designed with the expert’s active involvement. Even if the exhibit is formally “demonstrative,” it will still have more credibility if the witness is able to say, “yes, I worked with a graphic designer to develop this in order to aid my explanation.” That means that you shouldn’t have attorneys and designers working alone on these kinds of exhibits before presenting them to the expert. And neither should you allow the expert to design them on her own (because she is probably an expert in some area other than graphic design). Instead, the best scenario is for the designer, the expert, and the attorney to all be sitting side by side as the demonstrative takes shape. 

7. Thou Shalt Not Use the Screen as Thy Speaking Notes

This one is violated far too many times, not just lawyers, but teachers, managers, and the rest of the PowerPoint-using world. As I’ve noted before, it isn’t progress to move from a situation where speakers held notecards to a situation where the contents of those notecards are projected on the screen for everyone to see. Unless you’re showing jurors a document, you need to avoid screens filled with text, numbers, or bullet points. Despite your intuition, it doesn’t help listeners to be both hearing and reading the contents at the same time. Instead, it hurts comprehension and retention by forcing those listeners/readers to multitrack, resulting in less engagement and less understanding. A better approach is to pair a single visual with a simple verbal message…as long as that visual isn’t a literal “red herring” bouncing on the end of a string. 

8. Thou Shalt be the Better Teacher

Our own visual persuasion study supports the notion that jurors will compare the two sides’ use of graphics, and it doesn’t help to be the side making less use, or less sophisticated use of trial graphics. Instead, jurors see graphics use as a sign of preparation, and feel that the side making greater use of graphics is more prepared and more effective at highlighting the importance of the points being made. This advice is clear once you place yourselves in the fact finders’ shoes: They don’t know who to trust and they’re not comfortable seeing the trial as just a contest in advocacy. Instead, they want to reach their own conclusion, but they don’t necessarily feel that they have the necessary grasp of facts or law to make that call. So what do they need? A good teacher. Instead of trying to use graphics to be the better preacher, use them first to be the better teacher. 

9. Thou Shalt Have a Clear Purpose

Even as you focus on teaching, you should keep the likely purpose in mind. Every use of courtroom visuals should be accompanied by a clear and strategic purpose. To return to the blogging juror, she shared one other event from the prosecution’s case: 

How’s about having an FBI agent wheel in cases of gold bars confiscated from the defendant’s gold trading business, then ceremoniously unpacking and stacking the gold bars all over the prosecutors’ desk right in front of the jury box, and then having the jury pass one around so we can all touch and hold a gold bar.

What is the purpose of this PT Barnum-like move? Did he think that the skin-to-gold contact would shoot an electric current deep into us, bringing to life our inner greed like a baby Frankenstein and make us think, “Holy shit, I would TOTALLY kill someone over this! They’re right: he IS guilty!” Kinda found it insulting. Oh well, I guess it was cool to hold an ingot…

Yes, you want to engage the jurors and shake up their boredom. But it should never devolve to simply ‘show and tell.’ It is ‘show…in order to support a juror conclusion that helps our case.’ Keep that purpose in mind. 

10. Thou Shalt Make Continuous Use Where Possible 

You might think that a post that begins with such a nightmare scenario of graphics use might conclude with the advice to “use graphics sparingly,” but that isn’t our experience, and isn’t what we’ve found in research either. In our own controlled study, we compared the same trial presentation in a number of different scenarios: No graphics, flip chart graphics, static graphics, animated graphics, and continuous use of graphics (e.g., a PowerPoint). In each scenario, the story, evidence, and verbal message were exactly the same. But when the message was accompanied by the continuous use of simple graphic imagery, the side that used that approach benefitted from greater comprehension, more credibility, a better comparison to the other side, and a more memorable impression on several key points in the case. In other words, when the presenter did exactly what the prosecutor in the batman/buffet/red herring trial tried to do, he was more effective than he otherwise would have been. But the difference is critical. Rather than using silly, irrelevant, or distracting imagery, the visuals were carfully selected to make the point while otherwise adherring to these commandments and demonstrating common sense. So, bad graphics use is no excuse for no graphics, but is instead a reason for better graphics. 

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Other Posts on Graphics Use: 

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Photo Credit: Payton Chung, Flickr Creative Commons

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