By Dr. Ken Broda-Bahm:
A trial lawyer prepares for opening statement. All the exhibits are ready and in order, the structure is laid out, and the themes are in place. Now, let's just add in a few visuals -- a timeline and perhaps a couple of charts -- and it will be the icing on the cake, right? Wrong. In the battle for attention, influence, and retention, what jurors see will be a very big part of what they remember and use. For that reason, visual demonstrative exhibits are not something that you should just tack on after the substance of your presentation is already done. Instead these images should be integral to the message itself. In other words, it's not the icing, it's the cake.
For trial lawyers and others who want to fully put that into practice, there is a new and enormously useful resource. Written by Jones Day Partner Kerri L. Ruttenberg, the book is Images With Impact: Design and Use of Winning Trial Visuals (2017). The American Bar Association publication drives home the message that, for the working trial lawyer, the visual dimension cannot be an afterthought but needs to be thought out in advance, thoroughly and strategically. And the book is a great tool for doing exactly that. It can be used in a number of ways, providing practical and theoretically informed reasons and ways to use visuals in court. Rewarding either as a straight-through read or as a skim-able reference, the book is useful for trial or for other professional presentations. Ruttenberg also practices what she preaches, including well-prepared illustrations on nearly every page.
In this short review, I will call out four main advantages that I see in the book.
1. It Provides a Trial Lawyer's Perspective
Personally, I find it refreshing that the text comes, not from an academic or from a graphics expert or a trial-psychology consultant, but instead from a very experienced trial lawyer working for a high-profile global law firm. Kerri L. Ruttenberg is a D.C. based partner at the Jones Day law firm. The fact that she would see the importance of that, and her firm would support her in the endeavor speaks to how critical the visual dimension is in today's courtrooms. Beyond that, the lawyer's perspective also helps in providing the reader with advice, not just for creating effective graphics, but for creating effective graphics that will survive a Rule 403 challenge. At the end of the book in Chapter 24, Ruttenberg includes a detailed review of state and federal law on visual demonstrative evidence that is a practical aid to attorneys in understanding the relevant rules and in making and answering challenges. She also shares own working experience, for example telling in Chapter 9 how she used graphics to promote recall of individual roles and names in a case which involved a very large number of witnesses.
2. It Serves as an Ideal Inspiration Source
It might seem odd that a resource on the visual cutting edge would not be designed around fancy new technology -- say, an interactive site online -- but is instead a good old-fashioned, hold-in-your-hand physical book. But there's a definite benefit in the text being something you can simply take off your shelf and browse the next time you are thinking of what your case needs to show. Part II of the book specifically focuses on the main tools of visual communication, including design types like charts, maps, timelines, diagrams, or even simple text. Each of those segments include well-designed samples from a number of different designers -- Barnes & Roberts, Chicago Winter, Core Legal Concepts and RLM | TrialGraphix -- with the result being that the 318 pages of content are filled with professional and beautiful graphics. With that wealth of examples, the book is a good source of inspiration. The timeline chapter alone (Chapter 7) should be required reading for everyone who still uses just the old 'sticks and flags' method of arranging the events on a single line. There are alternatives, each beginning with the key question, "What are you trying to show or to prove with your timeline?" That focus on higher-end design, however, does not cause the author to neglect the lower end of the spectrum, as she also addresses the question of when to use low-tech methods like flip charts or Elmo document cameras.
3. It Hits Both Theory and Practice
The first line of the book's introduction is, "How do you help jurors whose professional background is in music, medicine, or mechanics understand the nuances of Section 10b of the Securities Exchange Act?" That underscores the fact that your visual needs in trial are practical needs, but whose answers are going to be informed by a lot of theory. And Ruttenberg covers that theory up front in a clear and accessible way. Part I of the book focuses on the theory of effectiveness in visual communication applied to trial setting. The section is well supported and cites Persuasion Strategies' own visual persuasion study showing that in controlled comparison studies, the use of visuals to supplement an opening statement results in better understanding and retention, especially on complex arguments like causation, and when the speaker makes continuous use of graphics (for example, using a slide show) that carries greater advantages than occasional use. One of my favorite sections of the book, however, is the well-supported and illustrated offensive of the text-heavy 'deck of bullet slides' that we still all too frequently see from lawyers. Careful use of this book will help attorneys to ban the bullet in their own trial and CLE slides and to make use of the many better alternative designs.
4. Frames Visual Communication as Strategic and Not Just Tactical
Ruttenberg's book draws from a number of fields -- marketing, design, education, psychology -- but never leaves the courtroom setting behind. Part IV of the book specifically addresses the strategic considerations in trial. One key factor in court, for example, is that you're not alone: Both sides are using visual demonstrative exhibits. Accordingly, the text includes advice on how to spot or to exploit misleading or unfair visuals from the other side, as well as the ways to make and ground objections.
But the bigger picture, the overarching strategy in using visuals, is that it is not just the tactics of making a given point at a given time, but is instead about the strategy of creating and reinforcing themes and "visual memories." This is important because what the jury is left with in their mind's eye as they file into the room to start deliberations, is indeed the cake and not the frosting.
Images With Impact is a very useful contribution to the attorney's task of understanding and using that visual dimension in trial. It doubtless took a substantial amount of work to pull all of these threads together and to present them in such a clear and engaging fashion. If you are a consultant, a trial lawyer, or an academic who is interested in trial communication, then Kerri Ruttenberg's book has earned a spot on your shelf.
Note: It should go without saying, but these days it doesn't: This is an independent review. I've received a review copy of the book (which I'll definitely continue to use), and I contributed a line on the book's back flap, but I have no relationship - business, personal, or otherwise - with ABA's publishing house.
Other Book Reviews:
- Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin's "The Oath"
- Learn from High-Profile Cases: A Review of 'Acquittal' by Richard Gabriel
- Know Your 'God-Thinking' (Book Review)
Ruttenberg, K.L. (2017). Images With Impact: Design and Use of Winning Trial Visuals. American Bar Association. ISBN: 978-1-63425-741-1. Order Link: http://shop.americanbar.org/ebus/store/productdetails.aspx?productid=269947805
Image credit: Book jacket cover (ABA)