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Make It Clear
By R. Craig Smith
Well-Orchestrated presentations can have a decisive effect on trials
Whether you are trying a patent case, a medical malpractice case, personal injury case, or a construction defect grievance, the courtroom challenges are virtually the same. So too are the principles of success no matter how simple or complicated the evidence. One attorney said, “You have to get all of the facts to fit into a single, simple picture that the jury can understand and believe.” That is no small task when you’re talking about complicated claims in a patent infringement suit.
The final, winning picture is a composite of many pieces of a puzzle, pulled together, arranged and refined to create a clear and simple image that makes sense to the jury. Medical malpractice and personal injury cases (and virtually all other cases that are information-intensive or technical) are generally lost because lawyers feel a need to put jurors through medical or engineering school before they entrust them with what happened tot heir client. In the interim, the jurors get so confused or bored they often end up making decisions based on which attorney wore the most colorful ties.
In a patent infringement case, for example, the defense attorneys spent significantly more money on experts and sophisticated presentation tools than the plaintiff’s attorneys, who found a formula for creating a picture the jury could see, understand and, most importantly, remember once the deliberating room’s door was closed. Mark McCormack’s observation in his book “What They Don’t Teach You at Harvard Business School” proved to be even more valuable in the courtroom – that is, “The side that is best equipped to control impressions will come out ahead.”
According to the plaintiff’s attorneys in the example, creating the proper “mix” of visuyal tools was key in allowing them to literally choreograph not only direct examination of their own experts, but also to control the impressions being made on the jury during the cross-examination of opposing witnesses. Their arsenal consisted of a well-planned and well-employed combination of high technology – laser-disk information management, computer animation, and video – and a variety of more common tools such as structural models, old-fashioned but well-designed charts, photographs, and exhibit boards. Balance and variety were essential in keeping the jury interested through long days filled with tedious explanations of scientific principles and competing theories, and focused on the issues that would help them reach their verdict.
In a rapidly evolving world of electronics and multimedia, the increasingly smaller size and portability of today’s presentation tolls make it easy for trial attorneys to offer the most interesting, powerful, and memorable presentation of the evidence to juries anywhere, with minimal difficulty.
Hera re four key lessons that any litigator can benefit from in virtually any kind of trial setting:
- Diversify presentation formats and tools. In the patent infringement case noted earlier, the plaintiff’s attorneys used a creative mix of high- and low-tech tools and exhibits, each designed to achieve a specific objective with the jury. The list included an Elmo projections system, data management on laser disk, a standard videotape player, exhibit boards that included standard document blow-ups and diagrams as well as graphically designed and color-coded claim boards; these tools helped the jury understand each element of the claim language. Although the courtroom already had “built-in” electronics, the plaintiff’s attorneys (who were 3,000 miles from home) carried their own complete system in a couple of cases. The attorneys noted that frequent changes in format revived the jurors’ attention, and information presented in different formats and from different perspectives broke the monotony, which kept jurors awake and focused.
- Give the expert direct access to presentation technology. More attorneys are recognizing the impact and flexibility of the Elmo as a presentation tool. Documents, 3-D objects, X-rays, photographs, graphics, and many other forms of evidence can be projected onto a television monitor in impressive color and detail. The Elmo can be connected to an electronic “draw” pad that allows the user to highlight, circle, and otherwise emphasize certain elements of a document or graphic. This in turn can be captured and printed on a laser copier for the juror’s benefit.
The problem, however, is that if only the attorney has access to the Elmo and does the drawing, the markings or highlights on the presented image cannot be considered evidence or testimony. An Elmo with a draw pad accessible to the witness, on the other hand, lets the expert make the marks in support of his or her verbal testimony and the captured image, with the witness’ emphasis, is admissible as evidence.
Normally, the examining attorney, when referring to a document or exhibit, will ask the witness to look at a particular page or tab in the exhibit book and the jury must rely on the fact that the person in the box is seeing something and talking about it. Imagine the impact made on jurors when the attorney asks the witness, “Would you please show the jury what it is you’re looking at?” and, with the swipe of a bar-code-reading pencil by the expert, the document appears on the monitor, ready to be shared by both the court and the jurors. This gives the jurors a sense of proximity to the expert by allowing them to virtually look over the expert’s shoulder. The involvement created between jury and expert is powerful and memorable and jurors feel they are more aligned with the witness. Then, when the expert draws attention to the particular point in the document that supports your case, the jurors feel they have participated in underscoring the important point you are making, and they will tend to remember that point because of their vicarious participation.
Even on cross-examination, the Elmo draw pad can be used to reinforce your argument by having the opposing witness underline or highlight information that may be damaging to his or her credibility, undermine his or her testimony, or reinforce the point you want to make. In this case, the jury has witnessed a physical act tantamount to an admission that your position is the more correct one. Finally, balance the high-tech stuff with some old-fashioned poster boards that can be strategically placed in such a way as to be there for the jury to refer to for longer periods of time. This
Craig Smith is the senior trial consultant at Prolumina Trial Technologies, in Seattle. He is a frequent CLE presenter, author of numerous articles on courtroom communication and trial strategies, and is the author of "Championship Law—Seven Keys to Winning Performance in the Courtroom.”
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