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Argue Your CaseARGUE YOUR CASE VISUALLY RIGHT From The Start By C. Steven Fury Fury Bailey 1218 Third Avenue, Suite 1300 Seattle , WA 98101-3021 (206) 292-1700 All trial lawyers know that the truth of the old saw: "a picture is worth a thousand words" has never been greater than it is today. We need no more proof than the abundant use of visual images by the best persuaders of our age: the advertisers of consumer products. To be effective, we must use the picture and save the thousand words. Any audience at the cusp of the second millennium is heavily conditioned by the visual shorthand of film and television and expects any other communication to conform to these standards of efficiency and entertainment. The tedium threshold of an audience is quickly reached absent a heavy emphasis on appeal to the visual sense. THE IMPORTANCE OF VISUAL PERSUASION A trial is a battle between two mutually exclusive visions of reality - yours and that of your opponent. If either view is plausible enough for a jury to believe, both sides may be willing to run the risk of trial. The jury's verdict is final vote on which lawyer has succeeded in persuading the jury of the veracity of his or her “vision” of reality. In the quest for a courtroom victory on behalf of a client, no legitimate persuasion tool can be overlooked. An essential and powerful means of influencing the jury is through visual evidence. Although four Visualizing the evidence in any case right from the start is essential to: • increase comprehension and retention - jurors absorb information more quickly on more levels. • keep juror interest through dramatic effect - no one is persuaded when bored or inattentive. • Illustrate what is unfamiliar or hard to imagine. • permeate subconscious of jurors and continue to influence them in ways they may not even realize. • supplement the inability and imprecision of spoken language to describe a certain situations or communicate some concepts, such as exact spatial relationships. • shorten the length of any trial because of greater efficiency of communication. The trial lawyer's ability to effectively use visual persuasion in the courtroom is often the difference between winning and losing. Today, jurors may expect lawyers to talk too much, but they will more likely believe one who appeals not just to their ears through words, but also to their eyes through visuals. Of the two, the appeal to the eyes is the most important. This is why advertising agencies spend enormous resources to develop just the right visual icon to sell a product. Offensive as some of these images may be, they work. VISUAL EVIDENCE IS EFFECTIVE Twenty-five years ago, Marshall McLuhan offered an analysis of why visual information is persuasive: Most people find it difficult to understand purely verbal concepts. They suspect the ear; they don't trust it. In general, we feel more secure when things are visible, when we can ‘see for ourselves.' We admonish children, for instance, to ‘believe only half of what they see, and nothing of what they hear' . . . We employ visual and spatial metaphors for a great many everyday expressions . . . We are so visually biased that we call our wisest men visionaries or seers! In addition to the psychological and cultural bias of most jurors in favor of visual evidence, it is much more efficient means of communication, enhancing the jury's ability to follow what you are saying. Alan Morrill recognized this nearly 20 years ago: With anything more than a simple set of facts involving an intersection collision, it is probably safe to say that following opening statements through words alone, not one juror has a clear picture in his mind as to how the accident occurred. It is a good bet that about half the jury is completely lost, perhaps some of them have a completely erroneous picture created in the mind's eye. VISUALIZE EVERYTHING IN YOUR CASE It is essential to visualize all of the information contained within the trial testimony. If the lawyer does not show and tell the jury about the relevant information, it will not persuade them and it will not be remembered back in the jury room. There is nothing particularly revolutionary about this. Going back to our earliest experiences in grade school, there was a reason we were surrounded by chalk boards which our better teachers used frequently Watch a TV news show and see how long the commentator speaks without a visual aid appearing over their shoulder on the screen. It is usually no more than three or four seconds. The reason for this is that talking heads are boring, whether they are on the TV screen or live. Remember those terrible early days of public television where talking heads were ubiquitous and the programs were full of dry, academic figures endlessly spouting even drier academic information? Talking heads are a turn off, whether on a PBS show or an expert on the stand in your case. VISUAL IMAGERY IS UBIQUITOUS Jurors are much more visually sophisticated today than at any other time in American history. Photographs, television and films have taken a predominant role in popular culture. Many social commentators have bemoaned the fact that fewer and fewer Americans read on a regular basis. Even the instrument panel on your car uses icons: visual symbols in place of words to identify the controls. For those of us without artistic skills, computer graphics and video cameras let us express our thoughts better visually that can be done with words alone. As trial lawyers, we must not be The advertising industry spends billions of dollars to identify what the public wants. It knows that visual images are the most effective way of persuading other human beings. A fundamental assumption of the advertising industry is that visual images are the most effective way of persuading other human beings. Advertisers assume that human beings are filled with a variety of unfilled urges and motives which swirl around in their minds, seeking resolution. They seek to latch on to one or more of these lurking subconscious drives and go for the soft underbelly of the American psyche where their messages have the greatest likelihood of getting by the consumers' defenses. Again, communication guru Marshall McLuhan: Gouging away at the surface of public sales resistance, the ad men are constantly breaking through into the Alice in Wonderland territory behind the looking glass, which is the world of subrational impulses and appetites. The most effective way for advertisements to break through the defenses of the consumers is to use specially selected images designed to stimulate the “subrational impulses and appetites” of the general public. For most ads, the emotional appeal and the greatest potential for persuasiveness occurs in the visual component of the advertisement. This is done because visual communication is better suited to the more primal levels of the brain. The appropriate visual image then connects the product in the ad with the promise of gratification of the summoned motive. The visual image is the stealth bomber seeking to invade the mental territory of the consumer. In the context of the courtroom, the trial lawyer must also select images which will deeply penetrate the subconscious minds of the jury, effectively carrying the message of the testimony along with it. As a trial lawyer, you have to start planning the visual case from the first time you meet with the client. This process of visualization will require you to step outside of your law school training and develop a whole new way of looking at presenting a case. Analyzing and preparing new ways to use demonstrative evidence in your cases requires you to stop “thinking like a lawyer” as you were taught in law school. You have to expand your horizons and look to the larger world outside. After all, this is where your jurors come from and in fact where you reside when you're not stuck at the office. Examine what is presented to a consumer of information in our society, either in newspapers and on television, or in more artistic endeavors such as films, books and plays. Look for patterns in these other sources of information. Look for patterns and attempts to appeal to the general interest of the viewer or the reader. Always be on the lookout for ideas to steal from those who spend their lives informing and persuading. The late Irving Younger believed that the staple filler of the Sunday paper, Parade magazine, should be required reading for any trial lawyer because it is commonly read by people likely to be on jury panels. Similarly popular and appealing are People magazine and USA Today. No article is longer than two pages and many are shorter, but they have great visuals. Long on pictures and short on words, these popular publications are extraordinarily efficient in telling a story that appeals to today's culture. There should be a lesson for trial lawyers. Exposure of the 1990's audience to commercials, films and television has increased their level of sophistication in visual symbolism. The jury ADMISSIBILITY OF VISUAL EVIDENCE One of the occupational hazards of being a judge is the daily ear scalding and boredom of enduring droning lawyers. An intelligent trial judge knows that bored, inattentive jurors do not promote decision quality within the court system. Judge Warren Wolfson of Chicago , Illinois is one of many judges who sees visual evidence as a way to assist jurors: I'm a big believer in blow-ups. I think everything ought to be blown up, especially photographs . . . [Often] [t]he jury hasn't the slightest idea what the lawyer is talking about. Important documents ought to be blown up, or put on slides and projected. Models of the body, when injuries have to be shown, ought to be brought in. Lawyers can't rely on words only. Words don't have the impact of ‘share and tell.' Juries will retain best, and believe best, what they see and hear at the same time. Most lawyers just don't know how to do that. Trial practice textbooks tell us that judges will be reasonably sympathetic to the use of visual evidence: Most judges in exercising judicial discretion will permit the use of visual aids if it can be demonstrated in advance that these aids can properly be used and it is counsel's intention to use them during the taking of evidence. Echoing the same type of sentiments expressed by Judge Wolfson, the higher courts of Washington have enthusiastically favored the use of demonstrative evidence at trial. For example, in Norris v. State the Court of Appeals of the State of Washington approved a series of drawings prepared by a professional artist of the scene of an accident where no photographs were available. Each drawing was identified and authenticated at trial by witnesses who supplied the artist with foundational information. The Court approved of this use of demonstrative evidence in sweeping terms: The State's objection seems largely motivated by the novelty of the evidence. Novelty in an exhibit, however, does not make it inadmissible. Reported cases on the admissibility of graphics and computer animation have been largely favorable. For example, the Court in People v. McHugh sustained the admission of a computer animation, strongly supporting the use of this kind of evidence: The essence of the [expert] report has been fed through a computer by means of a program. The result is a graphic presentation of 1 1/2 minutes duration. The evidence sought to be introduced here is more kin to a chart or diagram than a scientific device. Whether a diagram is hand drawn or mechanically drawn by means of a computer is of no importance . . . A computer is not a gimmick and the court should not be shy about its use, when proper. Computers are simply mechanical tools -- receiving information and acting on instructions at lightening speed. When the results are useful, they should be accepted, when confusing, they should be rejected. VISUALIZE THE CASE YOURSELF Analyzing and preparing the visual evidence for strategic use in your case is as much an act of lawyering as asking the questions in depositions, core persuasion that it is critical for a trial lawyer to master it. Since visual evidence helps persuade in every case, perhaps especially in smaller cases where economics do not warrant spending thousands of dollars on expert fees. Preparing the visual evidence yourself permits you to use it in every case. This does not mean that the trial lawyer is expected to or even can, actually create all of the visual images for a case. Accurate drawings and illustrations can only be done by an effective graphic artist. But the subject these drawings should show, how they are to persuade, how they fit within the entirety of the case is the lawyer's task. Begin from the moment you first meet your client collecting images. 1. Find Photographs. From your client, the police and anyone else who may have photographs or video of liability issues (e.g., the scene of the accident in an automobile case) or your client. Presenting your client visually in a sympathetic light is as important as humanizing your client through your words description. 2. Take Photographs. Do it yourself or hire a photographer. Video can be helpful. I am not a big fan of video for many situations. It is fleeting; once shown, it is gone. You cannot leave it up to fascinate the jury while your opponent speaks (or at least require him to take it down, demonstrating his fear of the power of your images). Nonetheless, only video can show some things such as motion and some spatial relationships. 3. Illustrations. Have them drawn of that which cannot be photographed. In my office we frequently have illustrations made of the moment of the accident or injury itself, a time when no photograph has been taken. Illustrations can also help focus on critical liability issues. Computer and other animations are another kind of illustration that must be used in some cases, for example to illustrate the dynamics of a car crash. Animations have many of the same limitations of video and another drawback: they can be expensive. 4. Icons. Visual images which do not themselves directly prove or disprove facts, but illustrate the argument of your case. The tobacco litigation proved this. One of its goals was the banishment of Joe Camel to history. Below was my icon in a wrongful death case brought on behalf of the widow and surviving child of a fisherman killed at sea. 5. Brochures and Web Sites. Manufacturers and sellers of consumer products produce appealing brochures to sell their products. They are a wealth of images for a product liability suit. Similarly, it is a rare business these days that does not have a web site that can provide jewels. I have a wrongful death case against Holland America Line for the death of a teenager vacationing with her parents on a Caribbean cruise. No parent 6. Words themselves can be visual images. In my office we often use bullet charts to quickly convey information with words both point by point and comparisons. The bullet chart on page 4-2 is an examples. Use different fonts and type styles. If you cannot think of a picture, an outline of what you say gives your audience (judge, jury, opposing counsel or insurance representative) something to look at while you talk. All of these visual images should be used from the start. Lawyers regularly confront witnesses in depositions with documents and occasionally with photographs. Witnesses are asked to draw rough diagrams of the scene, to which there is always an objection or stipulation that is not the scale. But why not come armed with the scale diagram or a prepared illustration for the witness to testify about? If the witness will not agree to the accuracy, find out why so the exhibit can be changed if necessary for trial. Use and develop the visual evidence throughout the discovery so that you create the visual images of the case and set the tone for how the whole case will be "seen." with gratitude to my partner, William S. Bailey, for his substantial assistance. MARSHALL McLUHAN and QUENTIN FIORE, THE MEDIUM IS THE MASSAGE, 117 (1967) ALAN J. MORRILL, TRIAL DIPLOMACY, 26 (2d Ed., 1974) 8 TRIAL DIPLOMACY JOURNAL 7 (1985) ALAN J. MORRILL, TRIAL DIPLOMACY 26 (2d Ed., 1974). Thomas Mauet is even more expansive and states, “If the exhibit is not in evidence, tell the judge you wish to use it during your opening statement and that you will establish a proper foundation for the exhibit during the trial. Today, almost all judges will allow the use of such exhibits under these circumstances.” THOMAS J. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES, 47 (3d Ed., 1992) 46 Wn. App. 822, 733 P.2d 231 (1987) 475 N.Y.S. 2d 721, 722-23 (Supp. 1984).
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