Category Archives: Visual Communication

October 23, 2017

When Assessing Emotions, Listen, Don’t Look

By Dr. Ken Broda-Bahm:

It was written all over his face.” That’s what we say when we think someone’s expression has told a truer tale than their words. It is the kind of statement that shows that we naturally pay a great deal of attention to the face when we are trying to assess emotion or credibility. But maybe we pay too much attention. According to research reviewed in a recent post in Psyblog, it is actually the tone of voice and not the face that does the better job of accurately conveying emotion.

The study (Kraus, 2017) shows people actually read emotions more accurately when listening and not when looking at faces. Over the course of five experiments involving over 1,772 participants, Dr. Michael Kraus looked at the ability to accurately empathize under three conditions: while looking at and listening to a subject, while just looking, or while just listening. The third condition won out, and accuracy was best when the research participants were just listening and not when they were just watching, or listening and watching at the same time. Similar results have been found in other studies. But why would less information be an advantage? Kraus suspects it is because people are better at hiding or faking emotions via the face rather than the voice, and listening and watching at the same time is cognitively complex, which causes the more reliable signs in the voice to be outweighed or missed. “Actually considering what people are saying and the ways in which they say it can,” Kraus notes, “lead to improved understanding of others at work or in your personal relationships.” It can also lead to better client assessment and witness preparation, as I’ll share in this post.

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May 22, 2017

Use Cartoon-style Graphics to Persuade

By Dr. Ken Broda-Bahm: 

Cartooning for profit

The common challenge in jury trial, and often in arbitration and bench trial as well, is to get your fact finders to follow, to understand, and to care. In pursuit of these goals, litigators will employ many tactics to continually gain and regain attention. One of those strategies is the use of graphics. Even when they are not strictly needed, photos, charts, timelines, and diagrams are common tools. What is less common, but perhaps should be used more often? Cartoons. That’s right, a cartoon-strip style where one or more cells are used to tell a story or convey a process, can often be an effective way to convey complex material in the courtroom. Recent research even suggests that it may be more persuasive than the alternatives. 

A release in ScienceDaily drew me to the recent article from the Journal of Visual Literacy (Rodriguez & Lin, 2017). In the study, 2000 Iowa residents responded to one of two versions of a brochure on the merits of wind power. The versions were identical except that one included a cartoon and the other included a photograph. It turned out that persuasion on the merits of wind energy was more successful when it used the cartoon rather than a photograph. Those who saw the cartoon version found it more informative, interesting, and cognitively engaging. They also displayed stronger intentions to support wind energy, including a greater willingness to vote for pro-wind candidates, to pay more for wind energy, and to learn more about the issues. Oddly, respondents reported that the photo was more “credible,” but that did not prevent the cartoon from being ultimately more effective in changing reported behavior. 

Why Might Cartoons Work Better

Reason #1: It Cuts Through the Clutter.  

Lead author Lulu Rodriguez, an agricultural communications professor from the University of Illinois, writes, “A cartoon grabs people’s attention long enough to deliver the message. That’s what you need in today’s message-heavy atmosphere. Why not use a tool that has proven ability to cut through the others and inform people in a way that actually works?” The article reports on prior research focusing on educational settings showing that the cartoon format leads to greater attention, particularly when conveying complex topics like science. By adding a visual or an intriguing narrative, the cartoon-style image provides a welcome break from the alternatives that are likely to be more complicated and text-heavy. 

Reason #2: It Is More Involving and Leads to Greater Processing Time. 

Particularly when it involves several cells in a series, the comic strip, this style of demonstrative exhibit requires a greater degree of mental participation. Your viewers don’t just look and react, they have to follow the flow of the story. Professor Rodriguez adds, “You have to spend more time with a cartoon to figure out the meaning of the illustrations and the situation,” “People look at cartoons longer, so they’re more cognitively engaged with the cartoon.”

Is the Potential for Lower Credibility a Deal-Breaker?

Even as it adds effectiveness, the cartoon is considered less credible than a photograph to the research participants. Since credibility is an advocate’s stock in trade, does that mean that this lower credibility is a deal breaker?

My answer: Not if it works. There is a difference between credibility and effectiveness, and we see it frequently in mock trial research: Participants will say that they didn’t like a particular example or say that a certain metaphor wasn’t credible…then they end up using it in order to reach the right decision. It may be that people are assigning less attributed “credibility” to the cartoon rather than the photograph just because it seems less professional in this context. As Rodriguez explains, “cartoons may still be viewed as appropriate for entertainment or light-hearted content, but not for serious-minded topics.”

But that hurdle may be easily overcome if it turns out that the cartoon approach works. As Rodriguez continues, “I have a colleague who actually did this to explain how they got the vitamin A into golden rice using a cartoonish infographic. Not very scientific — but people get it. It’s a lot easier to explain complex scientific concepts that way.”

Example: Tell a Story in a Sequence of Pictures

The following example is based on a real case, with the names, images, and labels all changed. In short, it involved a medical device inventor seeking financial credit for devices that preceded his invention or went beyond his invention. The explanation was abstract, and the specific timeline very detailed. So we felt that jurors would understand the story in the broadest possible light through the comic-strip arrangement. 

In this case, we combined the two factors tested in the study, using the actual photos of the devices, but placing them in the context of the storyboard strip style of presentation.

Changed Comic 3

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Other Posts on Innovative Demonstrative Exhibits: 

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Rodriguez, L., & Lin, X. (2016). The impact of comics on knowledge, attitude and behavioral intentions related to wind energy. Journal of Visual Literacy, 35(4), 237-252.

Photo credit: Karen Green, Flickr Creative Commons

May 4, 2017

Go Ahead and Use a Flip Chart

By Dr. Ken Broda-Bahm: 

Flip chart jpg

We live in an age of wonders, and those wonders are making it into the courtroom. Attorneys can now display, slice, and dice their documents on the fly using sophisticated presentation software, or even their own iPad. They can show demonstrative exhibits created with the kind of cutting edge design tools that used to be reserved for computer game designers. They can create complex animations using the most basic laptop computers, and even invite jurors into 360 degree immersive experiences allowing jurors to “visit” the scene without leaving the jury box. In that setting, it might seem odd for an attorney to pick up a magic marker and walk up to a flip chart on an easel — a little like a stage coach taking a wrong turn and ending up on the set of the newest Star Wars movie. Some modern attorneys have been critical of the use of such apparently throw-back technology. Taking aim at the attorney using the occasional flip chart, Baltimore lawyer James O’Conor Gentry Jr. says that, “not surprisingly, jurors will look at such unsophisticated courtroom graphics and become impatient, lose interest and disconnect from both the information and the attorney.” 

My experience has been different. In trial persuasion, or in any other setting for human communication, the maxim is never “Use the latest,” or even “Use the best,” it is “Use what works in each individual setting.” There are definitely situations where the digital wizardry of the newest technology will be what works the best. But there are also many settings where what will work best — what will be most spontaneous, most interesting, most credible, and most real — will be that marker and that flip chart. I don’t believe there is one mode of visual presentation that wins the competition for attention. Rather, that battle is going to be won through variety, and the very act of switching to something else, switching off the screen and walking up to the flip chart, is going to gain your judge’s or jury’s attention. In this post, I will share a few thoughts on some of the settings where it is best to make that low-tech shift, along with a few principles for keeping it effective and engaging. 

When to Use the Flip Chart

When You’re Interacting With Your Witness

Prepared graphics can sometimes be effective with a witness, particularly with an expert who assists in their preparation. But you never want it to look like a dog and pony show, because jurors are likely to trust neither the dog nor the pony. That’s where a flip chart can help in giving freshness to content that you are creating live during testimony. For example, the list of steps that your doctor-defendant took to properly diagnose the condition can be created as the witness answers each question, with the attorney writing down the steps as if she is hearing them for the first time. Building the list visually on the flip chart helps to keep the focus clear and memorable, and may even encourage jurors to write it down on their own.  

When You’re Interacting With Their Witness

The apparently organic list can also work with the adverse witness. Listing the precautions that a product user could have taken but didn’t, for example, can add powerful support to an argument for personal responsibility. A list of “No’s” in front of each of these steps gives visual emphasis to the point that the plaintiff could have helped himself, but chose not to. The fact that it is being created in the moment on a flip chart rather than being designed in advance, also adds flexibility in the event that their witness tries to be creative on the stand: One “Yes” among six “No’s,” can still be pretty effective, and potentially even a little more credible.  

When You’re Showing Something That’s Both Interesting and Simple

Outside of examination, the flip chart can also be used to illustrate an idea, sequence or process. The key here, however, is not to do too much. For example, I’ve seen attorneys who write down each of their key thoughts as they go on a flip chart. My suspicion is that they’re doing that more for themselves than for their audience, but the view from the bench and the jury box soon becomes pretty tedious, and can interrupt and delay the flow of ideas. But if it is reserved for just a couple of key moments, and if what is being written or drawn is simple enough, then the change of pace and the interactivity can be effective.  

How to Use the Flip Chart

Plan it in Advance

When you use a flip chart with your own witness, that witness needs to know what is coming: Their answers and the plan for what is to be written need to be in sync. When you use a flip chart with their witness, you also need to know what to expect, from the deposition for example. When a process or concept is being written or illustrated during an attorney’s presentation, practice drawing it in advance. Unless you have perfect handwriting and beautiful artistry when you’re under pressure, do not take to the flip chart based on a spur-of-the-moment idea. It has to be legible, meaningful, and resistant to any mischief from the other side. So, like all parts of your trial presentation, plan it out.  

Keep Your Eye Contact

Any visual aid can potentially distract a speaker, and generally the benefit of visuals makes it worth it for the speaker to work to avoid the distraction. A flip chart might be more prone to distracting the speaker, of course, because you’re creating it at the time, and not just displaying it. For that reason, speakers using flip charts need to work even harder to avoid distraction. Elliott Wilcox in the Trial Theater blog advises, “Don’t persuade the flip chart.” He notes, “many attorneys stop making eye contact with the jurors when they use visual aids, such as flip charts or enlarged photographs.” That’s another benefit of practice: Write a little, turn to the jury, write a little more, turn back to jury. Also, practice writing as you speak (it’s harder than it might seem) so that we don’t have awkward silence or just the squeak of the marker. 

Use it Now and Later

By design, your use of the flip chart should be geared toward making an impression at the moment. It typically does that well because an audience has a natural curiosity to look and see what it is taking shape in front of them. But this creation can also be used later. You can move for it to be identified as a demonstrative exhibit, or you can take a photo of it and show it again as a reminder during your closing arguments.  

Several years ago, Persuasion Strategies conducted its own visual persuasion study, a controlled experiment looking at the effectiveness of various forms of visual presentation accompanying an opening statement: no graphics, static graphics, animations, etcetera. The main finding of that research was that the continuous use of graphics (for example, through use of PowerPoint) led to the greatest levels of effectiveness. However, a related finding was that apart from that, no one mode of visual presentation had a significant advantage over the others. In other words, static demonstratives, animations, and the use of flip charts all led to similar levels of comprehension and credibility. To me, that underscores the common sense advice to use what works best in each situation, and to change it up from time to time. 

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Other Posts on Visual Presentation: 

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Image credit: 123rf.com, used under license

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February 27, 2017

Put “Images With Impact” on Your Office Bookshelf

By Dr. Ken Broda-Bahm: 

Images with Impact

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.  

 

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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. 

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Other Book Reviews: 

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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) 

May 26, 2016

When You Smile, Make It a Duchenne Smile

By Dr. Ken Broda-Bahm:   55481573_s

What is a “Duchenne smile?” It is not a smile that just involves the corners of your mouth turning up. Instead, it is a smile that activates both the muscles around the mouth as well as the muscles around the eyes. In all persuasive situations, we are told that a sincere smile can often help. As I’ve shared previously, a smile makes a speaker more credible, and (for reasons that are probably unfair) is especially important for female communicators. Smiling also makes the smiler feel more positive and improves mental outlook. No, that doesn’t mean that you should grin your way through trial, but it does mean that at appropriate moments, a sincere smile can help to convey your warmth and your humanity. The courtroom, of course, is a setting where sincerity matters a lot, and the perceived sincerity of the smile is mostly determined by whether that smile is a Duchenne smile or not.

The alternative, of course, is the non-Duchenne or mouth-only smile. This is also called the “Pan Am smile” (after the defunct airlines who started the practice of having flight attendants give the perfunctory “Thanks for flying…” smile as you exit the plane, and more recently the “Botox smile” in honor of those whose paralyzed muscles around the eyes and forehead cannot participate in the smile. Research in a variety of settings shows the advantage of a full-face smile involving your mouth as well as the crinkles around your eyes. When advertisements use Duchenne smiles as opposed to neutral faces or non-Duchenne smiles, for example, viewers have a significantly better perception of both the ads as well as the product being advertised (Scanlon & Polange, 2011). When tested, only a minority of us can deliberately imitate a Duchenne smile. The rest, when asked to imitate a smile will give a fake smile (Gunnery, Hall & Ruben, 2013). However, with a little bit of attention, we can also learn to give a Duchenne smile whenever we want to (Thibault, Levesque, Gosselin, & Hess, 2012), and those with the ability to produce that Duchenne smile on command end up being more persuasive in interpersonal interactions (Gunnery & Hall, 2014). All of this adds to a body of research showing that Duchenne smiles are more likely to evoke a positive mood from viewer, triggering positive emotional response. 

So let’s look at some examples:

 

The Duchenne Smile

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The Non-Duchenne Smile

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Note that if you cover the mouth on the photos above, you still see the expression around the eyes in the Duchenne example, while the eyes are just neutral on the non-Duchenne example. Because the muscles around the eyes are not in on the game, the viewer could more easily attribute other moods (coldness, sarcasm, contempt) to the smile in the non-Duchenne example.

Try It Now

You don’t need a mirror. Just try smiling as you read this. Think of something that makes you happy and give it a full smile until you can feel not just the muscles pulling up the corners of your mouth (those are the “zygomaticus major”) but also the muscles around your eyes (the “orbicularis oculi”). Now, try it with and without that eye involvement. The non-Duchenne version not only looks less sincere, it feels “fake” as well.  

So, next time in court, before you plaster on a partial smile before greeting the jury, remember, it’s not a movement of just your lips, it’s a party involving the whole face. 

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Other Posts on Smiles and Facial Expression: 

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Gunnery, S. D., Hall, J. A., & Ruben, M. A. (2013). The deliberate Duchenne smile: Individual differences in expressive control. Journal of Nonverbal Behavior, 37(1), 29-41.]

Gunnery, S. D., & Hall, J. A. (2014). The Duchenne smile and persuasion. Journal of Nonverbal Behavior, 38(2), 181-194.

Scanlon, A. E., & Polage, D. C. (2011). The Strength of a Smile: Duchenne Smiles Improve Advertisement and Product Evaluations. Pacific Northwest Journal of Undergraduate Research and Creative Activities, 2(1), 3.

Thibault, P., Levesque, M., Gosselin, P., & Hess, U. (2012). The Duchenne marker is not a universal signal of smile authenticity–but it can be learned!. Social Psychology.

Image credit: All images from 123rf.com, used under license

May 18, 2015

Improve Delivery By Perfecting Your ‘TED Moves’

By Dr. Ken Broda-Bahm: 

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The TED phenomenon is very interesting to me. The niche involves hosting 20-minute talks by innovative individuals, some famous some not, in order to share “ideas worth spreading” on technology, entertainment, and design — very broadly defined, those three areas form the acronym for TED. The idea that in today’s day and age, someone standing on stage giving a speech could be attention grabbing is a little refreshing to me. In fact, secretly (or not so secretly, I guess, since I am writing it in my blog), I would love to give one myself someday (“Trial Persuasion Lessons for Everyone…” — think about it, TED-people). But not all TED talks are created equal. I don’t think we’ve ever seen a bad one, but some of the talks achieve stratospheric levels of hits through viral sharing, and others don’t. According to an innovative new study, the differences may be explained to a surprisingly large extent by physical delivery. What the speaker is doing with her hands and body seems to mediate a large part of the reaction. That has some clear implications for attorneys trying to hold the attention of jurors and judges in court. 

A human behavior consultant with the firm Science of People sought to look at the question of what makes some TED talks more popular than others. Crowd-sourcing the task, Vanessa Van Edwards polled 760 volunteers. The panelists watched the talks under varying conditions, and answered a series of questions on content, credibility, and charisma. Matching those results with the physical delivery of the TED speakers, Van Edwards concludes that the speaker’s body language from the stage accounts for a large part of the difference between those that go viral and those that don’t. She distills the results down to five pieces of advice. In this post, I will share each of the five and also comment on how these principles can be applied in court. 

#1   It’s Not What You Say, It’s How You Say It

Vanessa Van Edwards asked some raters to watch the full TED Talks normally, and others to watch them on mute, without hearing the voice or the words. Remarkably, she reports that there were no significant differences in ratings. She takes this finding to mean that a large part of what we see as credibility and charisma is coming across via the nonverbal channel.

That being said, perhaps one concession we make for litigators is to acknowledge that it is both what you say and how you say it. Even taking Van Edwards’ finding at face value, context is still likely to play an important role. Unlike other audiences, jurors are working hard to base their decisions on the evidence. But the litigator who believes that this focus on content is so strong that  style and delivery don’t matter is being unrealistic. Along with your tone, physical delivery plays a critical role. 

#2   Jazz Hands Rock

Not all gestures are created equal, and I’d definitely discourage the wiggley-fingered “jazz hands” of Van Edwards’ title, but the point is that more gestures are better. The bottom 10 TED Talks in terms of views averaged 272 hand gestures during an average of 18 minutes, while the top 10 TED talks averaged 465 hand gestures, almost double, during the same span. 

For attorneys, and for witnesses to some extent, that means that the wise use of gestures can help improve dynamism, which is an important component of credibility. Certainly a TED speaker is likely to have more latitude than an attorney or a witness, but even in court, the need to engage remains. A speaker who uses his body, as well as his voice, is going to come across as more powerful and more interesting. 

 #3 Scripts Kill Your Charisma 

When you get one of those dreaded phone calls with a telemarketer on the other end of the line, it is easy to tell from the caller’s voice when they are reading from a script: The lack of variation in tone, pace, and emphasis is a dead give away that you’re receiving a canned pitch. Though the typical TED speaker is probably also giving a pretty tightly-planned presentation, it typically doesn’t sound that way. Van Edwards found that the greater the vocal fluctuation from the TED speaker, the greater the views of the presentation. Vocal variation led to ratings of increased charisma and credibility. In addition, the presence of any evident ad libs or other unplanned moments also increased audience attention.  

Litigators need to plan their remarks, but should similarly strive to sound extemporaneous and conversational, because that is simply easier to listen to. In addition, some unplanned humanizing moments, including a reliance on humor but not jokes, can also help you form a connection to the jury. 

 #4   Smiling Makes You Look Smarter

TED speakers who smile more, even when addressing serious topics, are rated as having more power and greater intelligence. But what works is not a quick and nervous grin, but a sustained smile: 14 seconds or more, according to Van Edwards. Not only will the smile improve credibility, but as we’ve noted previously, it also improves the speaker’s mindset and attitude. Research participants who smile, even in a forced manner, experience a reduction in stress and an increase in happiness. 

 So, litigators, set aside that expression that reads “grim determination” or “stress,” and smile at the jury whenever it’s appropriate — no, not when describing a tragic accident, but definitely when you’re breaking the ice and when you’re otherwise conversationally laying out your case. 

#5   You Have Seven Seconds

Van Edwards had some of the evaluators watch the whole talk while others watched only the first seven seconds. Comparing the two, the average ratings were equivalent. That suggests that reactions set in very quickly. Viewers arrive at a first impression, a durable “thin slice” evaluation, that doesn’t seem to change substantially through the rest of the presentation. 

For openings, closing, and mock trial presentations as well, this underscores the importance of the “Silver bullet” at the beginning. The jury will clearly try to base their assessment on everything they are told, but the first words out of your mouth have to set a strong tone for your case. So save the introductions and the quotations on the importance of jury service for later, and start with the short version of your trial theme.  

Now, it may be a good idea to take this research with a grain or two of salt. The findings aren’t published in an academic source, and Van Edwards repeats the chestnut that “Studies” (no cite or footnote here) “have found that 60 to 93 percent of our communication is nonverbal,” when we know that latter figure is based on an oft-repeated interpretation of data that that the original author, Albert Mehrabian, has disavowed. But looking at the TED Talk comparisons research on its own terms, Van Edwards’ findings track well with the findings of other studies (e.g., Maricchiolo, Gnisci, Bonaiuto & Ficca, 2009), suggesting that litigators do indeed have something to learn from the most successful TED talks.  

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Other Posts on Nonverbal Communication: 

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Photo Credit: urban_data, Flickr Creative Commons

 

May 11, 2015

Make the Right Kind of Eye Contact

By Dr. Ken Broda-Bahm: 

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The Minnesota State Senate, I learned from a recent NPR story, prohibits eye contact.  Incredibly, the legislative body has a rule stating that all comments must be addressed to the Senate President, and that rule is interpreted to mean that senators cannot look their fellow senators in the eye while speaking. The reason for this bit of absurdity is, apparently, that the lawmakers believe direct eye contact leads to hostility and a loss of decorum. According to former majority leader, Senator Tom Bakk, “Going through the president forces people to listen rather than watch facial expressions and look at each other, which sometimes I think kind of inflames some of the rhetoric going back and forth.” 

The problem with that reasoning is that it assumes there is a simple and deterministic meaning to eye contact, but there isn’t. Direct eye contact can convey hostility and disrespect, but it can also convey the opposite. The difference lies in what the rest of the face is doing, and also in the situational context. The NPR story quotes a dog behavior expert, Clive Wynne of Arizona State University: “A dog that’s wagging its tail happily while it looks another dog in the eye is maybe communicating something friendly,” Wynne explains, “whereas a dog that growls and has its hackles raised in a very tense body posture — the eye contact may just intensify that threat.” Among humans, an ability to give eye contact doesn’t necessarily increase persuasion, but it all depends on the context. In the complicated context of American litigation, eye contact plays a number of very important roles: It connects, communicates, and builds credibility. So what Wynne says to the Minnesota Senate applies as well in court: “Encourage positive, friendly eye contact, and discourage more aggressive, intimidating forms of eye contact.” In this post, I’ll look at a few different roles for attorney and witness eye contact. 

 

For All Eye Contact

In determining whether eye contact is friendly or aggressive, the key question is: “What is the rest of your face doing?” Here is an exercise you can do privately, and you don’t have to be an actor to do it. Set your eyes on a focal point, and now shift your expression to one of “concern,” now try “happiness,” now transition to “anger.” As you vary the nonverbal message, notice the small and subtle changes in the muscles around your face. The differences might be slight, but if you feel it, then you show it. Remembering that there is no such thing as a “neutral” expression, what you want to convey through your eye contact in most legal settings is interest, attention, and connection: not a blank stare, but an honest and open engagement. 

For Attorneys

Attorneys need to show respect to the judge and make a connection with the jury, and eye contact matters to both. But I want to focus on the attorneys’ two key moments in testimony. 

In Direct Examination

When questioning your own witness, your focus should be where everyone else’s focus should be: the witness. The point of direct examination is to put your witness in the spotlight. While the witness should focus on the jury (see below), the questioning attorney should join the jury in keeping the focus on the witness. At this point, the witness is the star of the show and all eyes should be on the stand. 

In Cross-Examination

Cross-examination is different in the sense that questioners will want the jury’s focus to shift a bit toward themselves. Instead of allowing the witnesses to be the star, the attorney steps into that role, to at least some extent, in order to make a point to the jury about the witness’s unreliability, inconsistency, or general weakness. In that setting, some of the attorney’s eye contact should shift to the jury. Looking at the jury as you ask some of the questions, for example, can make it clear that you are asking on their behalf, and voicing the jury’s own skepticism. 

For Witnesses

As the source of the facts, or the source of a key opinion, the witness should pay attention to eye contact.   

On the Stand

Look at the attorney when she is asking you questions, then look at the jury to deliver any answer that goes beyond a few words (and that should be most answers, if you don’t want to just “yes” your way through testimony). You should do the same whether it is direct or cross-examination, since you don’t want the jury to see you acting any differently depending on who’s asking the questions. In both cases, receive the question attentively from the questioner, and then deliver the answer directly to the jury. 

In Deposition

The ultimate audience for a deposition is the jury that might see it, but at the deposition itself, they’re not there. That makes the question of eye contact a little difficult. Some consultants advise witnesses to look directly into the camera lens, treating that as the jury. I don’t recommend that for two reasons: One, it can look artificial, suggesting to future viewers that the witness is playing to the camera, which seems insincere; and two, it can feel artificial to witnesses, continually reminding them of the presence of the camera, which increases awkwardness and constrains natural communication. The best advice for the deposition witness is to first make sure the camera is positioned near the questioning attorney, and then to simply look at the person who is asking you questions. If the questioner is trying to intimidate, the witness can respond by looking at opposing counsel’s forehead, or at a spot on the table just in front of the questioner. 

While there are other factors, like culture, that play a role in most settings in American litigation, positive eye contact with a key audience creates better communication and conveys increased confidence. But it needs to be the right kind of eye contact. So, what dogs apparently understand, and what the Minnesota Senate needs to learn, is what witnesses and litigators should apply every day in court.

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Other Posts on Eye Contact: 

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Image credit: 123rf.com, used under license. 

March 30, 2015

Use Charts (Even If the Need Seems Trivial)

By Dr. Ken Broda-Bahm: 

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Lawyers like to be efficient in communication, particularly in the setting of litigation, bound as it is by time and relevance. Perspicuity when persuading is considered a virtue in that setting and “Don’t do what isn’t necessary” is generally a good rule to follow. But on the subject of graphics, don’t carry that rule too far. Take, for example, the idea of using a chart or a graph in order to illustrate some kind of numerical relationship. If the question is, “Do I really need this?” the answer could be, “No – these jurors are literate and can understand the idea of a ‘15 percent increase’ without me showing it to them.” But don’t forsake the graphics too quickly. A recent study confirms the intuition that “seeing is believing,” even where what is seen carries only a trivial difference from what is described. Just using a chart substantially increases persuasive effect, according to a recent study by two Cornell researchers, (Wansink & Tal, 2014). Comparing the effectiveness of a simple text to the effectiveness of that same text with a basic chart, the study found that adding the simple graph increased beliefs about a medicine’s effectiveness from 68 percent to 97 percent. “But here’s the kicker,” the New York Times reported, “That chart contained no new information; it simply repeated the information in the orginal vignette.”

According to the study, the improved persuasiveness came not from additional data or reasons, or from improved compehension, but instead simply came from a positive association with science. “Even trivial elements can increase public persuasion despite their not truly indicating scientific expertise or objective support,” the study authors concluded. Adding a chart doesn’t make the claim any more scientific, but the visual data primes the audience toward that mode of thinking. As a result, they’re more persuaded by the data. The implication of this for courtroom persuasion is clear: Litigators should always lean toward visualizing any data that they talk about – not just the complex data, but all data. The question should never be, “Can they understand the point without the graphics?” but should instead be, “Can we simply show it as well as tell it?” This post takes a look at the research, and suggests a few less common ways that graphics can be used to consistently illustrate arguments in court.

The Research: Seeing the Data Means Believing the Point

Researchers Aner Tal and Brian Wansink of Cornell University’s School of Applied Economics and Management examined the hypothesis that “The appearance of being scientific can increase persuasiveness.” Using a very simple study design, they compared the effectiveness of two versions of a short research article on a medication’s effectiveness. Both articles contained the same data: 47 ChartsPersuasion2 percent of those taking the medicine suffered from the illness, compared to 87 percent of the control group. Pretty easy to understand, right? That information led to 68 percent of the experimental participants believing that the drug was effective. Adding a simple bar chart showing that same 47 versus 87 percent relationship, however, brought the effectiveness up to a convincing 97 percent.

Why does that work? It isn’t just comprehension, since anyone with the most basic numeric literacy can understand the relationship between 47 and 87 percent without needing to see it. Instead, the graph’s effectiveness appears to stem from a halo of legitimacy surrounding the impression of science. In a subsequent study, the team also showed that a similar advantage resulted from the use of an incomprehensible chemical formula within the text. The additional information increases the degree of attention given to the data and places it within a credible frame. Providing further support for this conclusion, the research found that the effect was more pronounced among those who believed strongly in science.

Of course, the version with the bar chart is also more immediately understandable and more saliant to the viewer. That increases the chances that the data will be noticed, remembered, and used in forming an opinion. Admit it: You looked at the chart before you read the previous two paragraphs. 

The Implication: Visualize Even the Simple Stuff

The finding that even simple graphs dramatically increase persuasiveness is good news, because simple graphs don’t take much time to create or explain. Due to their immediacy in being understood, simple charts can actually save you time during opening, testimony, or closing. Unless you’re forced to put something on the record that you really don’t want jurors to remember or use (and that seems pretty rare, but not impossible), then you are better off showing that data in a chart. 

When it is a straight-up case of needing to show the results of research, attorneys generally understand the advantages in displaying the data in graphic form. But here are a few uses of charts that are less common, but still a good idea:

Use Charts to Show Proportion: In one case, we needed to convey to the jury the power of a particular chemical. To show a concentration of just one molecule in a thousand was enough to cause harms, we showed a demonstrative with just one tiny red dot among a field of 999 blue dots. 

Use Charts to Distribute Responsibility: If your verdict form includes an apportionment of responsibility and you want to propose a starting point for jurors in deliberation, using a pie chart will help jurors to remember and anchor upon a particular distribution. 

Use Charts to Argue Damages: Damage numbers are most often presented in a table, but using a chart, you can make different points with the numbers. For example, a bar chart might convey that the difference between defense and plaintiff numbers isn’t all that great, and subtly suggest a mid-point. Using a pie chart might show that most of what the plaintiff is asking for is in the noneconomic category. 

The point in using charts wherever possible is one part of an “immersion” strategy in aiming for the verbal persuasion to be more or less continuously accompanied by visual persuasion. As often as you ask, “What should I say?” you should be asking, “What can I show?”

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Other Posts on Visual Persuasion: 

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Tal, A., & Wansink, B. (2014). Blinded with science: Trivial graphs and formulas increase ad persuasiveness and belief in product efficacy. Public Understanding of Science, 0963662514549688.

Image Credits: Lead image from GrapeCity, Inc., Flickr Creative Commons. Chart designed by Jason Bullinger, Persuasion Strategies

November 27, 2014

Make Colors Meaningful

By Dr. Ken Broda-Bahm:

Screen Shot 2014-11-27 at 7.44.02 AM

Learning music carries some pretty profound cognitive benefits, so along with my seven-year-old daughter, I’m currently learning to play the guitar. Communicating the correct string or strings to pick carries some challenges, though. You could say the “D String,” but that doesn’t always yield quick recall from the seven-year-old (plus, it is complicated because it depends on tuning, and even in the standard tuning, there are two different “E Strings”). Or you could say, “the third string from the top,” but that isn’t immediate either because it requires counting. Then along comes a nifty computer program called Rocksmith, with the idea of saving the numbers for fingers and frets, and simply representing the strings in different colors. Now I can just say, “the blue string” and my daughter knows immediately where it is. The string, of course, isn’t really blue, but we have learned that association very quickly by playing some video games that are part of the program. The color coding is one of those genius hacks that make you wonder, “Why didn’t anyone think of this before?”

The idea of building an association between a color and a particular meaning is a useful idea for litigators developing graphics for trial. Based on some recent and surprising research, that association speaks to a deeper cognitive role being played by color. Using color isn’t just a way to brighten up your trial graphics, it can be an important part of your visual strategy. A good designer knows that consistently using different colors in distinct ways can be a way to build an immediate and useful association for the jurors or judges viewing the exhibits. Much has been written about the meanings of different colors (e.g., Red is “intense” and blue is “calm,” etc.), and this post is not about those attributions (which, to me at least, seem highly individual or situational). Instead, this post is about the ways that we can, like the Rocksmith designers, make colors mean something just by building a consistent association.

The Research: Color Associations Carry a Surprising Advantage

Jeremy Dean’s Psyblog includes a recent post on a study that found that developing an association between colors and letters creates a 12 percent average increase in the research participant’s IQ. The original goal of the study was to look at synesthesia, a condition affecting 1 in 23 in which the senses are inter-mixed to the point that those with the trait might feel that colors have a taste, or that numbers carry a certain sound. The research team (Bor et al., 2014), that included Ravenous Brain author Dr. Daniel Bor, wanted to see if people could be trained to have the experience of synesthesia. So they had research subjects spend 9 weeks developing an association between specific letters and colors. The discovery of the side-effect of increased IQ on a fluid intelligence test was a surprise.

And a strange surprise at that: Why would a trained ability to link colors to letters increase one’s intelligence? The study did not answer that, but to me it seems parallel to the observed benefits of combining visual and verbal persuasion: By activating different areas of the brain at the same time, the brain is encouraged to act in a “multi-modal” manner, and that in itself seems to convey some kind of  cognitive advantage.  That is a reason why using trial graphics works. Based on the study, it may also be a reason why it is a good idea to train viewers to rely on colors in a particular way when developing those trial graphics. Here are some ideas for using colors as part of your trial message.

The Recommendation: Use Colors Purposefully in Your Trial Graphics

Rule one, of course, is that the graphic has to be easy to read. That means that colors should have sufficient contrast against the background (So PowerPoint presenters, that means please stop using black or red text on a dark-blue background). But once the clarity threshold is met, the next consideration is strategy. Specific ways to build a subtle or an explicit color-coding into your graphics will depend on your case, but there a few different litigation contexts where I could see a likely approach.

In Patent Cases, Use Color to Separate the Elements

Patent cases are notoriously complicated. Just getting the jurors to understand the specific claims and elements can be challenging, but that understanding is key to making or defending against an infringement or invalidity argument. Consider the example of a product patent that includes four elements. The elements could each be represented using a different color on a product diagram, and then those same colors could be used in bullet point charts or in the patent language itself. Through repeated use, it could get to the point that, whenever the juror is hearing about the fourth element, the juror  is seeing the color blue. That kind of use could make it easier to keep the concepts separate, and to make them understood and memorable.

In Employment Cases, Use Color to Distinguish Parties on the Timeline

There is a problem with what I call the “Porcupine Timeline:” a horizontal line with a bunch of black lines sticking up. They are all equal, none stand out, and the only immediate visual message is, “A bunch of things happened.” In all timelines, design features should be employed so some elements stand out and convey a message. In the employment case, for example, all entries relating to the employee’s choices might be blue, any signs of worsening performance could be red, and the company’s responses could be green. The visual impression, even without reading it, could then be, “Wow, look at all of that red…the green came at exactly the right time.” That same technique might be applied to other litigation situations that depend heavily on a timeline, like construction or contract cases.

In Energy Royalty Litigation: Use Color to Show Stages in a Process

In oil and gas royalty cases, the question is often, “At what point does the commodity enter the market and become subject to a royalty?” And the steps between energy in the ground and energy in someone’s home can be many and complicated. A flow chart is often used to simplify that process. In that context, color can be used as part of the message. For example, shades become darker as the oil or gas gains value. Or, once the royalty kicks in, the path turns green. Alternately, if there are three different ways that a royalty might apply, then each path might be represented in its own color from start to finish, like a color-coded pipeline.

Those are just a few examples, but probably enough to get the idea. By combining color with distinct content, you are training the viewer to build up that association and to rely on it as a shortcut for quicker and more durable understanding. The principle applies anytime one is learning something new, whether that be learning a case or learning to play the guitar: Comfort leads to confidence, which in turn leads to credibility. Connections that are easier to understand are more likely to be believed.

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Other Posts on Visual Understanding: 

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Bor, D., Rothen, N., Schwartzman, D. J., Clayton, S., & Seth, A. K. (2014). Adults Can Be Trained to Acquire Synesthetic Experiences. Scientific Reports4.

Image Credit: Screen shot from the Rocksmith program.

November 13, 2014

Consider a Flowchart Verdict Form

By Dr. Ken Broda-Bahm: 

Bus. Concept & Flow Chart

Juror C: Okay, we’ve answered question four, so let’s move on to five. 
Juror A: No, it says that if we answered “No” to four, then we skip to seven…
Juror D: …I totally know the answer to six, it is “Yes!”
Juror A: Wait, wait, we should not even be answering that…
Juror D: Well, let’s just see what everyone thinks…
Juror F: Yeah, just to be on the safe side, let’s answer each one, and we can always cross it out later. 
Juror A: No!

That is a small sample of the kinds of confusion one can see when a jury confronts a complex verdict form. In the mock trial observation room, counsel and clients might be tearing their hair out over mistakes that could risk an inconsistent or ambiguous verdict in the actual trial. Lawyers and judges will strive mightily to clarify the verdict form and make sure it has clear skip instructions, but it is easy to see that most verdict forms, particularly special verdict forms in complex trials, sow barriers in the way of a clear or simple verdict. 

A recent article in the Duke Law Journal proposes an intriguing possibility for a better way. To address the hazards of verdict inconsistency — damages without predicate liability or cause, or duplicate damages for the same harm awarded in more than one category, for example — the article (Fang, 2014) makes a compelling argument for flowchart verdict sheets “as a prophylactic against juror confusion.” Inconsistent verdicts are burdensome and expensive, sometimes requiring a do-over in whole or in part. “By mitigating the confusion that can result in inconsistencies before the verdict is rendered,” Jerry Fang writes, “the flowchart verdict sheet enables the judicial system to avoid the costs associated with remedying inconsistent verdicts.” This post takes a look at this interesting legal reform idea and shares some thoughts on how it might be incorporated in civil trials. 

The idea is to use simple visual communication techniques to make the verdict process more clear and intuitive. The author shares an example of a flowchart verdict sheet created for an employment discrimination case in the Eastern District of New York:

Flowchart verdict form

(Please click to see full-sized version)

Comparing the chart above to a traditional verdict form, it is clear that the flowchart version gives jurors an immediate visual sense of their decision making path, a sense that a careful jury would only possibly get after specifically reading the text of a more conventional verdict form. 

Consider Using a Flowchart Verdict Form

The article recommends the creation of model flowchart verdict forms by the federal judiciary. but that should not prevent parties from individually or jointly proposing this design. Flowchart verdict forms are not yet in common use, but that won’t change unless litigators ask for it and judges try it. All (usually) have an interest in clarity, and as Jerry Fang writes, “These ‘flowchart verdict sheets’ can visually — and in a clear and intuitive manner — ‘map’ the cognitive decisions a jury must make to reach a verdict.” They realistically mirror how jurors are following a process and choosing a path. For support, Fang points to a study (Semmler & Brewer, 2002) showing that representing instructions in flowchart fashion did lead to improved comprehension of the instructions, including better retention and recall as well.  

But Consider How It Looks As Well

A flowchart is visually quite different from the typical linear presentation of verdict questions. Because that difference could have an effect on how jurors interact with the questions, parties will need to think carefully about how the chart is laid out. For example, it will be important for the visual space to be about equal on the “Yes” and “No” sides. One side shouldn’t look simpler, easier, or more ‘downhill’ than the other. In the article, Jerry Fang draws on Edward Tufte, the Yale University professor most famous for his war against PowerPoint, and shares a few reminders that should go into the design. Litigators interested in trying this approach would be well advised to have any proposed flowchart verdict form designed, or at least reviewed, by a graphic designer for clarity, simplicity and fairness. 

Even Without a Flowchart Verdict Form, You Can Still Explain the Verdict Process Using a Flowchart

Even if the judge is likely to err on the conservative side and veto any near-term use of a flowchart verdict form, that does not prevent you from using a flowchart as an educational tool. If the jury understands the process visually, they can apply that understanding to a linear and traditional verdict form that uses skip instructions. So consider using slides in closing argument that lay out the decision making sequence in the most understandable fashion, which is probably a flowchart. In a mock trial, you might also think about using a flowchart verdict form as a shortcut. For example, you might think you’ll have a chance to really explain a complex traditional verdict form in the real trial, but you don’t want to sacrifice the time that it would take to do so in a mock trial, so you rely on the more visually obvious version for expedience. 

The idea is pretty new, so some caution is warranted. The Fang article makes the valid point that much comprehension studies have focused on whether jurors understand the instructions, not whether they understand the form itself. So a quick message to academics who want to publish and not perish: An interesting study design would be to compare two versions of the same verdict form — one framed in the traditional style and the other in a flowchart style — and see if there are differences in comprehension, speed, and overall result. 

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Other Posts on Verdicts and Instructions: 

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Fang, J. J. (2014). 12 Confused Men: Using Flowchart Verdict Sheets To Mitigate Inconsistent Civil Verdicts. Duke Law Journal64(2), 287-331.

Semmler, C., & Brewer, N. (2002). Using a flow-chart to improve comprehension of jury instructions. Psychiatry, psychology and law9(2), 262-270.

Image Request: 123rf.com, used under license

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