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SUCCESSFUL COURTROOM COMMUNICATION TECHNIQUESby * WILLIAM S. BAILEY Fury Bailey 710 – 10 th Avenue East Seattle , WA 98102 (206) 726-6600 billb@furybailey.com AN OVERVIEW OF THE MASS MEDIA'S INFLUENCE ON THE COURTROOM Seventy years ago, Clarence Darrow could give an 8-hour closing argument and have the jury hanging on every word. This was due not only to his virtuoso performance, but also because his audience was largely unconditioned by the verbal and visual shorthand of film and television. However if Clarence was to give such a eloquent, 8-hour filibuster today, he would be in grave danger of being labeled as a gasbag or worse by a 1990's jury. Like it or not, jurors view a trial on which they sit in real life with the same expectations as they view the trial on television at home. If the trial lawyer fails to match the production values and entertainment level that jurors have become accustomed to through the media, he/she will lose the jury. While jurors cannot change the channel of a real life courtroom scene, they can let their minds drift far, far away. Bored jurors do not often lead to a good result for the plaintiff. Serving as an actual juror forever changed the way I communicate as a trial lawyer. As a juror, I was removed from the singleminded focus of a lawyer/participant, and saw courtroom communication from a spectator's eyes for the first time. It was only then that I realized the horrible truth: The traditional approach to trying cases is terribly boring for anyone who has come of age in the media dominated post Word War II era. Despite good lawyering on both sides of the case on which I sat as a juror, I became nearly narcoleptic, constantly fighting off the temptation to fall asleep. Why? The slow drip-drip-drip of information through the conventional means of courtroom communication was totally at odds with the rapid flow of information I was accustomed to seeing on television or in motion pictures. For example, the pace of a traditional courtroom trial suffers badly by comparison to the standards of TV news production. The average TV news commentator takes only 1 minute 30 seconds to cover a story -- 30 seconds to set the stage, 30 seconds to tell the details and 30 seconds to wrap up. For most of this time, the viewer sees much more than just a talking head. The spoken words of the newscaster are accompanied by either a picture or diagram of the scene, often supplemented by a cutaway to a location shot. The ponderous ritual of trial is in stark contrast to the TV news, often taking an hour or more to express points that are no more complex than those which take 1-1/2 minutes on the average news program. Why is this? The traditional trial process is a slavish ritual which has not yet graduated into the second half of the twentieth century. If Abraham Lincoln were transported by time machine from his heyday as a trial lawyer in the 1850's into a present day courtroom, he would not need any explanation on the process of a “modern” trial - the basic elements would be much the same as he knew them 140 years ago. This is not surprising, as the ritual of a jury trial within Anglo-American jurisprudence has remained. relatively unchanged for centuries. Starting with the black robes of our judges and the Grecian temple architecture of many of our courthouses, the trial process has always strongly resembled a secular religious ceremony. In much the same way that practitioners of classical martial arts such as judo rigidly follow ancient ceremonial dances, trail lawyers follow their own preordained rites before the jury. Nearly everything we have learned in law school and from the conventional wisdom of trial practice is wrong for the courtroom of the 1990's. Due to the intensive competitive pressures of trial work, lawyers often fail to understand the needs and expectations of jurors in the way information is presented. It is hard to avoid becoming jaded by a trial lawyer's life, filled as it is with too many lengthy depositions, boiler plate briefs and windy, arcane arguments. The rigors of legal combat tend to warp our perspective about what is really important in any given case -- what themes, information and presentation style is the most likely to motivate other human beings. Self-importantly, lawyers expect jurors to be interested in their cases and the legal process generally just because the lawyers are. But this isn't necessarily so. Jurors don't look on the court process with any particular appreciation for its traditions, rituals or evidentiary rules. What motivates jurors is very different from what motivates lawyers. It is a continuing professional challenge for lawyers to be able to step out of their advocates' role and put themselves in the jurors' shoes. Jurors are only temporary interlopers in the judicial process. To reach them with peak effectiveness, lawyers have to start pacing the flow of information in their cases to synchronize with the way information is received in the outside media-dominated world. THE CRITICAL IMPORTANCE OF PACE Above all else, shorter is better. It is heresy to say, but a good two-minute closing argument on a TV show like L.A. Law may have more jury appeal than 30 minutes with even a virtuoso trial lawyer. The reason? Quick pace and great script writing. Professional script writers have learned how to convey concepts and emotions with very few words. They are keenly aware of symbolism, both visual and verbal, and use it to great effectiveness. On the other hand, trial lawyers have a tendency to inefficiently repeat the same points over and over, often with contrived emotion. This real life experience compares quite unfavorably with its TV counterpart in the minds of the jurors. Though L.A. Law is now condemned to the rerun circuit, forever lost to prime time viewers, the pacing of that show remains an inspiration to me. Imagine, two or three cases tried in less than 10 minutes apiece during the course of a one-hour program! I was continually amazed at how effective a two-minute closing argument was on L.A. Law. Likewise, the average L.A. Law expert witness testified in two minutes or less, managing to get right to most persuasive points without delay. In short space of time, this show left the viewer with a keen appreciation of a legal case's most important points. TRADITIONAL LAWYERING METHODS NO LONGER WORK So much of what is in a conventional closing argument or direct examination in trial practice text books is unnecessary and suffers by comparison to its cinematic counterparts. I have ultimately concluded that much of the trial ritual no longer works and must be discarded. L.A. Law, the TV news and mass media communication techniques set a standard in As unlikely as it may seem, my immersion into television lawyerdom has radically changed the way I try a case. Like Kurt Vonnegut, Jr., who once declared that the second half of his life would be spent unlearning what he had acquired during the first half, I now find myself abandoning a good deal of the conventional wisdom about how to try a significant jury case. I approach a case more as a film director now and less as a trial lawyer. The more a lawyer can make the pace and structure of a trial like a film or a TV show, the greater his/her chances of success. Jurors expect courtroom cases to track with the other sources of information and entertainment to which they are exposed. I first applied the techniques of mass media communication in the Washburn case, in August, 1990. This was a product liability case involving a propane explosion in which I got the best result of my career. The jury awarded my clients, Norm and Sharon Washburn, $8 million, half a million more than I asked for. This trial was the culmination of my own experience as a juror and my heightened awareness of the media-bred expectations of jurors. I have continued to move my technique as a trial lawyer in this direction ever since. As a starting point in the analysis of how others make decisions, you must ask yourself, "Where do you look to find out how people get information they rely upon in their daily lives?" One of the answers to this question is that question you look to popular culture, which is the primary source of information for most people. Popular culture also reflects the image and expectations of lawyers in our society. The ways in which a lawyer presents information must parallel and reflect these other sources in the larger society if it is to be regarded by the jury as credible. THE INCREDIBLE SHRINKING ATTENTION SPAN In addition to awareness of juror influences in popular culture, you must also consider the shrinking attention span of the American public. This is an inescapable fact of life in our country in the 1990's, one which every trial lawyer must pay serious attention to. Media research has determined that the average viewer now has an initial attention span of 30 seconds or less, which is why we are bombarded all day long with television and radio commercials of this length. This is also why "sound bite" technology has become a major part of communication by public figures. In May 1984, reporter Jack Curry aptly summarized this trend: We're pop culture speed freaks. We are now demanding that movies, TV and live presentations streamline themselves to meet our need for clutter-free, mega-intensity amusement. Released in 1939, Gone With the Wind is one of the most successful movies of all time. Yet, if this movie were made today, it is doubtful that it could be released at its original 3 hours, 39 minutes. Why? It's becoming much harder to persuade sufficiently large crowds to sit in a theater for 3 hours + due to shrinking attention spans. Even 15 years ago, length didn't matter as much. Both The Godfather and The Godfather Part II were enormously popular, despite 3-hour lengths, respectively. However, many other Academy Award-winning 3-hour movies since then have lost millions of dollars (e.g. The Right Stuff , Reds and Gandhi ). Consequently, it is now commonplace for studios to sacrifice dramatic values to a 2-hour running time in order to achieve greater audience appeal. This declining attention span is also manifested in the printed word of popular culture. We lawyers tend to forget that we are not our own audience. Many of us prefer publications such as the Wall Street Journal , the New York Times , or The New Yorker which are more thoughtful, with more detail and analysis. But how many people on the average jury read these? Not many. A lawyer's respect for thoroughness and detail often is not shared by the public at large. The late Irving Younger believed that the staple filler of the Sunday paper, Parade magazine, should be required reading for any trial lawyer. Why? Because this is the most read magazine in America . On the subject of attention span, it is interesting to note that there is no article in Parade magazine that is longer than two pages and many are only one page in length. Likewise, the immensely popular People magazine specializes in two-page articles. They are designed to be read in a grocery line. USA Today is one of the most popular newspapers in America because it has very short articles and great visuals. These popular publications are extraordinarily efficient in telling a story with relatively few words and many pictures. There is a lesson in this for trial lawyers -- "when in doubt, cut it out." Keep it short, short, short! Nowhere is the shrinking attention span more evident than in the world of TV lawyers. During the 1950's and the 1960's, Perry Mason was the predominant image of the lawyer among the public at large. Perry pursued his craft at an intermediate pace. It took him a whole hour to figure out who committed the murder, usually with Paul Drake coming in at the last minute with the critical information. Looking at the pace of L.A. Law 30 years later, Perry Mason now seems positively frozen in slow motion. Quite often, three separate cases were tried in one episode of L.A. Law and no case was over 10 minutes in length. L.A. Law did not invent anything new, it simply recognized the diminishing attention span of the general public in setting the pace of the show. Exposure of the 1990's audience to commercials, films and television has increased their level of sophistication in visual symbolism. The jury members cannot leave their expectations of brisk pace behind when they enter the courtroom, no matter how many times they hear on voir dire -- "you don't expect this to be like television, do you?" MAKE YOUR POINT QUICKLY A trial lawyer's job is now a matter of presenting information so well that every member of the jury catches it the first time. It must be said well, quickly and with visuals. It shows a lack of respect to the jury to ingrain points through repetition. Jurors resent anyone who does not give recognition to their intelligence. If something is important enough to say at all, say it with impact and move on. Many on the panel got it the first time. By the third time they hear it, they are bored or insulted. Since the initial attention span of a juror in the 1990's is 30 seconds or less, any juror will make a very fast initial assessment of whether anything being said to them in court is of value to them. For this reason, the beginning of a witnesses' testimony or a lawyer's oratory is critical. If not, they will tune out quickly. If you are able to pass this first 30 second hurdle and convince the jurors that either you or your witness are worth listening to, they will then “buy into” another time increment of perhaps one to one and a half minutes. In this second period of active listening, they will continue to judge whether or not there is anything of value to them in the presentation. In essence, 45 minutes worth of testimony in court may be broken down into as many as 20 or 30 segments of attention in the minds of the jurors. The jurors continually reexamine whether or not they are going to continue to pay attention. If the structure and pace of the testimony does not hold sufficient promise of a reward to the listener, you will lose all but the most dutiful jurors. Just as your own mind wandered quickly in law school when you had a boring professor, jurors will listen only so long as they get value from what you or your witness have to say. Ask yourself this question, how many of these jurors would stay tuned if a particular segment of the testimony appeared on their TV screen at home? If you answer is uncertain, you'd better revamp your presentation. LEARN FROM FILM AND TV PRODUCTION Given this reality of shrinking attention spans among the juror population as a whole, it is time to adapt the techniques and production values of film and television to enhance the persuasive power of the plaintiff's case. In many ways, the trial lawyer fills an equivalent role to both a film director and producer. It is the lawyer's taste, subtlety and judgment which puts the whole case together. The lawyer holds the physical and emotional elements of the case and has working knowledge of all components of the story/proof. The lawyer determines the angle of approach, controlling the perspective from which the jury is allowed to view the action. It is the lawyer's job to create the atmosphere or mood to get the best performance out of witnesses, subtly guiding them along in their own Nothing is more essential to jury attentiveness than the pace of the evidence or argument. Pace is the tempo at which information moves in telling the story. No one is more responsible for this than the plaintiff's lawyer. Pace is an instinctive thing which is difficult to teach and is often a reflection of the lawyer's personal pace as a human being. The most vital qualities in achieving pace are enthusiasm, personal energy and a keen sense of drama. An audience will always respond favorably to a crisp, forward pace of dramatic action. An element of movement is essential to keeping an audience/jury alert and awake. In "scripting" testimonial sequences during the case, short action filled scenes are preferable to long-winded and talky ones. Whenever possible, start a witness exam or oral argument with a dramatic punch that gets the jury properly hooked on your theme. You can fill in the details later. As virtuoso film director Preston Sturges observed, "In America, you can't begin a picture slow. You open with clouds and an airplane comes through. In the next shot, the plane has to explode." There is another advantage to moving the pace along. It tends to obscure any flaws in your proof. Longtime "B" movie director Bryan Fay observed that movement was essential to covering over the problems and inconsistencies in his pictures. "Keep it moving. You can't see the teeth on a buzz saw." Severe editing and sparing use of detail is essential in promoting audience involvement in your case. However, this is particularly difficult to achieve in an era of discovery overkill. A significant case can fill several file cabinets with depositions, if not a whole room. Yet, you must ultimately extract from this wealth of information only that which will be able to pass the same test used for films and television -- "will this promote pure involvement of the audience in the story?" If not, don't use it. In one sense, distilling a case down to its bare essentials is nothing new. One of the most famous trial lawyers of all time, Abraham Lincoln, perfected this technique to a fine art 140 years ago. He had a single minded power of concentration, thinking "slowly, methodically, deeply, as he tried to find the 'nub' of a question and strip it of irrelevance." Through this process, he would boil the case down to the crucial point and then relentlessly bring this before the jury. As a result, "he was almost unbeatable when simple right and justice were involved." THE IMPORTANCE OF VISUALIZING A CASE At its essential core, a trial is a battle between two mutually exclusive visions of reality - yours and that of your opponent. Either view is plausible enough for a jury to believe, which is why each side is willing to run the risk of a trial. The jury's verdict is the final report card on whether a lawyer has succeeded or failed in planting his/her version of reality in the juror's mind. In the quest for a courtroom victory on behalf of a client, no legitimated persuasion tool can be overlooked. One of the most powerful means of influencing the jury is through visual evidence. Although four decades have passed since Melvin Belli first began to emphasize the importance of using photos, models and illustrations at trial, lawyers have barely scratched the There are a number of important reasons why to visualize the evidence in any trial: 1. The poverty and imprecision of the English language to describe a number of situations. 2. Illustrates the unknown or hard to imagine. 3. Increases comprehension and retention - jurors absorb information more quickly on more levels. 4. Permeates subconscious of jurors - influences them and they may not even realize it. 5. Adds dramatic effect - more interesting. 6. Shortens the length of any trial - one picture is worth a thousand words. In a society that is increasingly visually oriented, a lawyer's ability to control the visual field of play in the courtroom is often the difference between winning and losing. In the 1990's, jurors expect a lawyer to appeal not just to their ears through words, but also to their eyes through visuals. Both are equally important . This is the same reasons why advertising agencies spent enormous resources to come up with just the right combination of words and pictures to sell a product. Information is not received in a vacuum. Rather, it is filtered through the value system and common experience of the jurors. If the lawyer only tells the jurors why a client deserves to win, a visual deficit is created. Words are only a triggering mechanism to stimulated common experiences VISUAL EVIDENCE IS THE MOST EFFECTIVE Twenty-five years ago, Marshall McLuhan offered an analysis of why visual information is much more persuasive. His thoughts still hold true today: 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 vision aries or see rs! 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 to write down information. Sound is not an effective, efficient medium for the transmission of detailed information. Our mind glazes over when a speaker merely bombards us with one statistic after another. Rather, the use of sound is to bond with the audience, to motivate, inspire and galvanize them. Detailed information in an analysis is best transmitted through sight and presentation in a visual medium, not in an auditory fashion. If an expert merely scalds the ears of the jurors with a large volume of talk and no use of visual aids, the chances are the information will not be remembered. 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. PREDOMINANCE OF VISUAL IMAGERY IN THE 1990'S Jurors are much more visually sophisticated in the 1990s then at any other prior 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. In this vein, Paul Connolly, the director of the Institute for Writing and Thinking has observed: We have become such a sophisticated culture that we are intolerant of a 400 page book, and want forms of communication that are more efficient and immediate. After 500 years, we may have outgrown Gutenberg. Look at the instrument panel on your car and you will see proof of how visual symbols are now being used in place of words to tell people what to do. Even for people without artistic skills, computer graphics and video cameras let people express things visually that could only be done with words ten years ago. As trial lawyers, we figure out how to harness the trends in modern society and popular culture to persuade and communicate with our jurors. A fundamental assumption of the advertising industry, which spends billions of dollars to figure out what the public wants, 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. Advertisers 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. Communication guru Marshall McLuhan has stated: 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. A NEW APPROACH TO DEMONSTRATIVE EVIDENCE 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. In figuring out new ways to use demonstrative evidence in your cases, you have to stop thinking strictly like a lawyer. 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. One of the things that has helped me in devising new means of demonstrative evidence is to connect my professional life as a lawyer with my personal life as a consumer of information, either in newspapers and on television, or in more artistic endeavors such as films, books and plays. I look for patterns in these other sources of information. What attempts are being made to appeal to the interest of me, the viewer or the reader? I am always on the lookout for ideas that I can steal from these other sources of information. For example, all of us have seen the changes that have come over daily newspapers in the last two or three years. The formats of most other major metropolitan daily papers have borrowed shamelessly from the visual and graphic style of USA Today . (The New York Times and The Wall Street Journal are exceptions here.) Although most of us were inclined to scoff at USA Today initially and refer to it as "McPaper", its influence on the journalistic world is undeniable. Look at both the Seattle Times and the Seattle Post-Intelligencer these days. More often than not, there are color pictures on the front page now with slick and effective graphics - a direct lift from USA Today . Magazines have also become much more sophisticated in their use of graphics. Look through Time and Newsweek magazines. Most stories in these news magazines have at least one photograph on each page for visual interest. However, many of the individual articles also have graphic compositions that illustrate some key point. Look at how quickly you are able to get the point from examining a visual accompaniment to a magazine article. Cover up the color graphics on the pages of these magazines and see how much less interesting they become to you as a consumer of information. The very same principle applies to your courtroom endeavors. Once you become aware of how demanding you the lawyer are as a consumer of information in your "off duty" hours, you will never go back to boring the jury by words alone. You will always come into court with the visual evidence you need to make the key points in your case. You would demand the same thing if you were sitting as a juror on the panel. DELIVERING THE VISUAL KNOCKOUT PUNCH In the last few years, I have sought to use Abraham Lincoln's method of identifying the pivot points on which the jury's decision is likely to swing. I then use these to come up with visuals which are so well designed and persuasive that the jury says, "That's it, that's all I need to know about liability in this case." I call this delivering the visual knockout punch. This technique is a reflection of our visual society, in which where one photograph in an advertisement can influence millions of people to buy a product. Not all cases lend themselves to distilling their essence in this fashion. However, if the lawyer is willing to spend the extra time that it takes to boil a case down to its most essential parts and then work with a graphic artist, it can often be done. I first developed this visual knockout punch technique in Washburn v. Beatt Equipment Co., a personal injury case I tried in August 1990. At the conclusion of discovery, I extracted the key points from the fact witnesses and my experts as to what had actually caused the accident. I then took a sequential set of photographs of the scene where the accident occurred, assembling them in a 7-foot-wide panel to cover 800 feet of the accident scene. These photographs had a 3-D effect when blown up; it looked and felt as if you were actually at the scene of the accident. This was similar to the wide screen effect of Cinerama in the movies. I then had artist Aaron Weholt draw a representation of the pipeline which caused the explosion underneath the pavement shown in the photographs. Underneath this, we listed the "10 sins" of the defendant, liability facts as to what caused this accident. This demonstrative aid allowed me to explain a supposedly "complicated" liability case in less than 1 minute. This single visual aid brought my entire case together. I had every witness, either plaintiff or defendant, refer to it during the course of their testimony. Every one of the defendant's "10 sins" was firmly linked to testimony of one of the witnesses. My opponent was left with fulminating that this was "poppycock" or "nonsense" but he could not think of a way to undo the damage which this single exhibit had done to his case. VISUALIZATION DOESN'T HAVE TO BE EXPENSIVE You needn't even spend large sums of money to hire an artist, photographer or filmmaker to visualize the case. Many times, it is enough to prepare charts to summarize the most convincing or important data or arguments in the case. For example, in 1987, John Gotti, the "Dapper Don", was acquitted of federal racketeering and conspiracy charges (as we all know, Mr. Gotti's luck finally ran out on him.) However, in the 1987 trial, the last piece of evidence requested by the jury for re-examination was a chart introduced by the defense that showed the criminal background of seven prosecution witnesses. It listed the 69 crimes including murder, drug possession and sales, and kidnapping. The chart prepared by defense counsel Bruce Cutler in that case invited reading both horizontally and vertically. Either way it was done, the chart provided a devastatingly effective summary of the poor reputations of those testifying against Mr. Gotti in the trial. This same type of format can be adapted to effectively summarize evidence in a wide variety of cases at minimal cost. It is also advisable in any case to summarize those key answers given by witnesses in depositions. In most circumstances, you can boil a deposition down to a few pages of information that is most likely to persuade the jury to your point of view. For example, in Zeretzke v. Intalco Aluminum , a wrongful death case, the electrical and maintenance superintendent at Intalco was deposed on the feasibility of turning off the power during repair operations on the grounds of the facility. In a devastating admission, he acknowledged that the power could have been turned off without any hindrance of the manufacturing process. We culled out the half page of questions and responses leading to that answer and had it blown up for use at trial. STORYBOARDS - COMIC BOOK TECHNIQUES IN REAL LIFE SITUATIONS Storyboards are also a relatively new tool in the area of trial practice which can effectively visualize the actual events of an accident. In essence, storyboards are black and white or color drawings that illustrate a sequence of events. They are similar to the life-like action scenes in comic strips. The history of storyboards can be traced over sixty years to Walt Disney, who used them to plan the action sequences in cartoons prior to filming. Since that time, storyboard use has grown tremendously in the motion picture industry as a whole. Every film now made has the visual action planned on storyboards prior to actual production. In addition, every advertisement on television is first planned through storyboards by the agency responsible for it. Just as in comics and film production, storyboards can be used to visualize the key scenes upon which your case turns (see examples in appendix). SEQUENCING - USE VISUALS WHEN AND WHERE THEY WILL DO YOU THE MOST GOOD In addition to developing new and better ways of visualizing your cases, also give some thought to the matter of sequencing. What is the most opportune positioning for the demonstrative evidence within the trial? Again, borrowing shamelessly from another area of popular culture, I learned of the arcane science of "sequencing" in record albums. Veteran record producers spend inordinate amounts of time positioning the order in which the tracks appear on an album. One song placed in a different spot can change the whole feeling of a record. In the same way, the order in which visual evidence is used at trial and with what witnesses can make an enormous difference. STREAMLINING DIRECT EXAMINATION Direct examination is the primary vehicle by which we tell the story of our case to the jury. Much of what is said on this subject in trial practice text books is wrong. Have you ever sat through a conventional direct examination of a witness while observing somebody else's case? Any time I have observed a direct examination in this fashion, I have come away with the firm resolve to make mine even shorter. Most often, these tend to be Boring with a capital B . Take a look at the 2-minute direct examination on L.A. Law and then ask yourself if an hour and a half is really necessary to present an expert's testimony to the jury. The following suggestions are ways in which direct testimony can be done more effectively. 1. Far too much valuable time is spent establishing the credentials of the expert witness. This is largely a waste of time. If the expert does not speak with clarity, enthusiasm and authority, all the qualifications in the world will not redeem him/her. If the expert does possess these qualities, extensive recitations of what he/she has done in their field will not elevate their status any higher in the eyes of the jury. It is more than adequate to establish their expertise in general terms by asking a few basic questions. The rest will become self-evident during the course of their testimony. (See attached example by Seattle, Washington attorney Norman W. Cohen.) 2. Get the expert's opinions before the jury at the very beginning of his/her testimony, preferably during the first 5 minutes. Don't beat around the bush, tell the jury exactly why this person is being called and get each expert to summarize his/her opinions in one paragraph or less. Federal Rule of Evidence 705 presents a tremendous opportunity to make direct examinations more concise. It frees us from the juror-numbing necessity of introducing voluminous facts or data underlying the expert's opinion. So use it! The days of the hypothetical are over. 3. If you can shorten testimony by introducing written exhibits, do so. For example, rather than going through all the expert's qualifications, introduce his/her resume as an exhibit. Let the jurors look at it later when they deliberate. It will do you more good as a permanent exhibit anyway. Another example is the effective use of medical records. Don't ask a doctor to go into all the times that he/she examined a patient when the medical records can be admitted into evidence for this purpose. Rather, focus on the impact which the injury has had on the plaintiff's physical function. Remember, you may only have 5 minutes with a particular witness before you lose certain jurors' attention. 4. Boil down any scientific or medical principles involved in your case to a definition of 25 words or less and have an illustration or demonstrative exhibit for each and every concept. The ideal illustration of this is the book How Things Work published by Simon & Schuster. Even the most technical concepts are made readily understandable by a combination of simple words and effective graphics. These principles of medicine or science have an enormous capacity to bore the jury. There is no reason for a lawyer to burden the jury with this kind of detail. 5. Never present complicated narrative answers loaded with facts or physical findings. Every minute you use to present your case depletes juror attention which may be needed further down the line. Just like a fine painting derives some of its powers from what it leaves out of a scene, strong witness testimony is also impressionistic. It is always best for an expert to describe an occurrence with short answers. 6. Don't ask emasculated or bleached out "what if anything happened next" lawyer questions. The rules don't require you to be a dull, listless questioner so put a lively focused question to the witness that will elicit an interesting response. 7. Listen carefully to witnesses during prep sessions and note their use of language to facilitate questioning. Learn to punch their own buzz words in asking questions so the witness will readily understand what you are asking them to talk about. A vague question produces a vague answer. 8. Choreograph each witness' testimony with appropriate visuals. Avoid the talking head syndrome like the plague! As a rule of thumb, you should have a witness interacting with a visual prop for most of their testimony. Look at the TV news; the periods of time in which there is just the talking head of the anchor person is limited to 15 seconds or less. THE CRUCIAL IMPORTANCE OF AN EFFECTIVE OPENING STATEMENT WITH VISUALS AND RAPID PACE Though trial practice gurus differ in many areas, there is near unanimity on the proposition that the opening statement is the most important single part of the trial. Thomas Mauet's observations in this regard are representative: The opening statement will be your first opportunity to tell the jury what the case on trial is all about. As such, it is a critical part of the trial . . . opening statements often make the difference in the outcome of the case. Studies have shown that jury verdicts are in the substantial majority of cases, consistent with the initial impressions made by the jury during opening statements. As in life generally, the psychological phenomenon of primacy applies, and initial impressions become lasting impressions. The conventional wisdom about the critical importance of an effective opening statement is not mere punditry and is backed by impressive statistics. For example, the landmark study by Kalven and Zeisel showed that as high as 80% of the jurors ultimately made up their mind during opening and did not change it during trial . Generally, once human beings make up their minds on a subject, later inconsistent information may affect the strength of their conviction but it will not change their mind in any fundamental sense. THE TRADITIONAL APPROACH TO OPENING STATEMENT - A WASTED OPPORTUNITY The usual opening statement in a case is a throw-back to pre-twentieth century means of communication. It largely consists of a more-or-less dry lawyer talk about what the evidence will show with very little, if any, visual evidence. Trial practice textbooks frequently describe opening statement as exclusively an appeal to the ears of the jurors : Painting a picture in the mind's eye through the use of words. These “how to do it” sections on opening in trial practice textbooks are phrased nearly exclusively in the verbal approach: Tell the jury . . . . It is a statement . . . If [the jury] heard nothing more . . . Any reference to what the jury sees or is shown in opening statement is at best spliced on as an afterthought in most trial practice textbooks and usually receives a lukewarm endorsement at best: Exhibits in opening statements are a mixed blessing. On the one hand, they can be an effective tool to make key facts clear for the jury. On the other hand, exhibits can also distract the jurors' attention from you and once seen, will no longer be new evidence when reused during the trial. However, using a media based analysis, the traditional opening statement described above is a throw-back to the nostalgia days of radio - all talk, with nothing for the eye to see. This is likely to miss the mark as the jury of the 1990s no longer spends their evenings listening to the thundering hoof beats of the Lone Ranger on the parlor radio. They are watching television and video movie rentals instead. Any lawyer who uses the “radio days” approach to opening statement is wasting his/her most significant opportunity to persuade the jury through visual means. The time is long overdue for fundamental change in the traditional approach to opening statement, one which turns it into a predominantly visual medium with verbal accompaniment. The effective trial lawyer of the 1990s works hand in hand with a creative consultant or art director to devise ways of visualizing the key points for opening to both persuade and inform jurors. The few attorneys who have already taken this approach have experienced dramatic success. The forms and format of visual evidence will vary with the proof problems unique to each individual case. Computer animation may be the key to success in one case and a waste of money in another. A simple storyboard may be more effective than a filmed accident reconstruction. There are no fixed rules other than that the lawyer should focus on ways to but the case across visually from the moment it comes into his/her office and plan a legal strategy to make sure that all of these visuals are available for use in opening statement. This article will now discuss approaches in how to facilitate this goal. THE OPPOSITION RESPONSE - KEEP EFFECTIVE VISUALS OUT OF OPENING AT ALL COSTS Basic “a picture is worth a thousand words” instinct tells any trial lawyer than an effective visual display can galvanize a jury to a particular point of view. Significant use of visual evidence is definitely seen as a potential threat by the other side, and correctly so. As a young public defender, I noticed very quickly that even my fairly primitive, homespun trial visuals were of great interest to made my opponents. Whenever I came into court with a black artist's portfolio in hand, in addition to a briefcase, I got at least a second look from the prosecutor. An advocate who intends to use effective visual evidence in opening statement can count on determined opposition and howls of exasperated outrage from the other side. There will be no gentleperson's agreement stipulating to the use of such visuals. The representative flavor of what opposition response can be expected is drawn from a relatively recent case that I tried: I think we should back up and look at this for a second. This is flat-out bizarre . . . This is utter off the wall stuff . . . I have never seen anybody in court trying to proceed in such a fashion . . . This is not part of the framework within the court system. I want it clear that I would really take violent exception to this . . . He shouldn't be allowed to do [this] in opening statement . . . That is way beyond the realm of acquainting the jury with what the evidence and issues are . . . To allow him at opening to bandy these props around is representative of what is out there. I object to. THE JUDGE'S ROLE The earlier discussion about the unchanging trial ritual does not presuppose that judges are opposed to the innovative and creative use of visual evidence in opening statement, or anywhere else in trial. Far from it. One of the occupational hazards of being a judge is the daily ear scalding and boredom of enduring droning lawyers who always start out saying, “Just briefly Your Honor . . . .” 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. In fact, most trial practice textbooks state that judges will be reasonably sympathetic to the use of visual evidence in opening statement: 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 many states 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. The lack of use of visual evidence in opening statement is not the result of reluctant judiciary, but rather the failure of imagination on the part of the trial bar. SCOPE OF PERMISSIBLE EVIDENCE IN OPENING STATEMENT As a general matter, authentication and identification of visual evidence for use in any portion of the trial including opening is straight-forward and simple. In both state and federal courts, the only authentication needed for such evidence is testimony of a witness with knowledge of the event or able to describe the process contained within the visual evidence, concluding that it is a reasonable representation of the subject matter. Anyone with first-hand knowledge of the subject of the visual evidence can provide the necessary foundation. It is well established that any party in a lawsuit may, in opening statement, refer to admissible evidence to be presented at trial. The party seeking to admit relevant and properly identified visual evidence has a right to introduce it. Federal Rule of Evidence 611(a) and its state court counterparts gives the trial court broad authority over the mode and order of presenting evidence. The rule requires only that the court's control be “reasonable” and that it serve the general objectives of ascertaining the truth, avoiding needless consumption of time and protecting witnesses from harassment and embarrassment. Similar to Federal Rule of Evidence 102, a trial court's discretion to determine the presentation of evidence in specific instances is not limited by ER 611(a). The purpose of ER 611(a) is only to define general guidelines for the exercise of judicial discretion at trial: Rule 611 deals with matters that are known virtually by instinct by every experienced trial lawyer and judge. Rule 611(a) grants the trial court broad discretion over the proceedings to ascertain the truth, to avoid needless consumption of time, and to protect witnesses from harassment and embarrassment. In addition to the broad grant of discretion to the trial court on the admission of demonstrative evidence generally, appellate decisions are of limited precedental value in this area: The court's decision invariably turns on the particular facts and circumstances of the individual case, and the trial court is affirmed with little or no discussion in the vast majority of cases. The discretion which inheres in the trial court makes careful planning and foundation for all demonstrative evidence essential, particularly when it is sought to be used in opening statement. Use of a formal pretrial admission hearing to affirmatively admit demonstrative evidence for use in opening is invaluable. The remaining portion of this article will discuss this technique. USE OF PRETRIAL ADMISSION HEARING FOR VISUAL EVIDENCE Invariably, many lawyers take a casual approach to how and when the necessary foundation for visual evidence is to be laid. There is a pervasive tradition of sloppiness in this regard. It is common for a lawyer to bring up such admissibility questions at trial on an ad hoc basis, often just before the court is ready to bring the jury back in after a recess. Such an approach is a virtual guarantee of a hostile and inattentive reception by the judge. In addition, as discussed previously, if the visual is effective, it is certain that the opposition will do everything short of setting themselves on fire with gasoline and a match to urge the judge to keep it out of evidence. If you are off on the wrong foot with the trial judge by failure of adequate planning, you make your opponent's job in this regard an easy one. By tradition, lawyers are accustomed to filing pretrial motions in limine to keep out evidence that is perceived as unfairly prejudicial. A formal motion in this regard is appropriately heard before the jury is impaneled, along with an accompanying brief. The court is then able to sort out these admissibility questions in a more structured and attentive manner before the pressure of a waiting jury is an issue. Yet, the same lawyer who dutifully files a motion in limine to keep out evidence rarely thinks to prepare an equivalent pretrial motion to get in evidence prior to opening statement. This is unfortunate, because what you get in before trial starts is every bit as important as what you keep out, particularly when the requirements of an effective opening statement are considered. The usual consequence of not setting up a formal pretrial hearing to lay the foundation for visual evidence is that the court will not permit this evidence to be used in opening, deferring a decision on it until later in the trial. By that point, later may be too late as far as persuading the jury, particularly if the opponent has taken the necessary steps to have an effectively visualized opening statement. Like the third little pig who made his house out of bricks, you have to be able to plan ahead and lay your foundation for visual evidence to be used in opening brick by brick. Otherwise, a very effective and expensive piece of evidence may remain locked in your briefcase as a rejected effort at a time when it could do you and your client the most good. A CASE STUDY - HOLMAN V. MULLAN The case of Holman v. Mullan is instructive on both the procedure and the possibilities of using effective visuals in opening statement to persuade a jury. Todd Holman was 21 year old college student and gifted athlete who was seriously injured while a passenger in a left-turning Audi Fox. An oncoming Honda Acura T-boned the Audi, literally splitting the vehicle in two pieces. In the ensuing lawsuit, the oncoming driver's insurance company made a reasonable settlement based on evidence that the Acura was exceeding the posted speed limit, going 60 m.p.h. in a 30 m.p.h. zone. However, the insurance company for the driver of the left-turning Audi refused to admit fault for this accident under the deception doctrine, claiming that the speed of the oncoming Acura deceived of the driver into thinking that a left turn could safely be made. When boiled down to the most critical element, the liability in Holman v. Mullan hinged entirely on what the driver of the Audi could see as he began his left turn. As the disfavored driver under the rules of the road, the jury would be most interested in the question of whether the driver of the Audi should have seen the oncoming Acura and known to yield the right of way. To this end, plaintiff's counsel then retained a competent accident reconstructionist and an experienced filmmaker to create and film visibility studies under similar conditions as the night of this accident, using exemplar cars. Needless to say, the end result of this effort was a fifteen second film that was extremely damaging to the deception doctrine defense of the Audi driver. It showed that the Audi driver could have clearly seen the oncoming Acura from at least three blocks away and never should have attempted the left turn. Once the filmed visibility study recreated the view available to the defendant driver, the question needed to be asked where this evidence would be most effective at the trial itself. In asking this question rhetorically without reference to what is “usually done,” my answer was “opening statement, of course.” Of course, the traditionalist view is that a piece of evidence such as this “simply isn't allowed” in opening statement. Yet, I could find nothing in reported cases forbidding the use of visual evidence of this type in opening statement. So, why not? Instead of always taking the rear view mirror approach of “where is the precedent?” I devised a plan to try and preadmit the videotape of the visibility study for use in opening statement. In Holman v. Mullan , a formal pretrial motion was filed before the trial judge to preadmit the filmed visibility study as evidence for all purposes, including its use in opening statement. Both the accident reconstruction expert and the filmmaker were scheduled to appear at the pretrial hearing for foundation purposes, even though they would later testify in the trial as well. Although this added some extra expense to the expert witness budget, this was money well spent because of the potential outcome of using this evidence where it would do my client the most good, in opening statement. In Holman v. Mullan , the accident reconstruction expert's calculations were not challenged by the defendant's experts. They were presented in affidavit form as to the findings and conclusions for foundation purposes. This affidavit and the accident reconstructionist's deposition were submitted to the trial judge and relied upon by the filmmaker in his testimony at the pretrial hearing. The defendant made a spirited shot-gun attack at the pretrial hearing in the area of the filmmaker's testimony. Plaintiff's counsel laid the foundation for the visibility study in some detail. The procedures under which the film was made were thoroughly discussed, including the type of camera equipment used, film speed and type, equivalency of weather and lighting conditions and special circumstances of filming under nighttime conditions. (This accident occurred at 10:00 o'clock in the evening with a dark sky.) My opponent conducted an extended cross-examination of the filmmaker about technical limits of night photography. He also brought his own witnesses to the pretrial hearing who challenged the accuracy of the final product. These included a human factor's expert who stated that the camera in a fixed position “sees” more detail than a human being, whose eyes and head move constantly over time. The defendant also brought in another photography expert whose position was that night photography involves manipulation in the film processing laboratory which makes it an inaccurate representation of actual lighting conditions. The pretrial hearing on admission of the video took nearly an entire judicial day in Holman v. Mullan and was completed before the jury selection began. Having been forewarned that the pretrial hearing on this evidence would be hotly contested, the court scheduled an appropriate amount of time and allowed a complete opportunity to lay the necessary foundation. At the conclusion of the hearing, the court determined that the visibility study was accurate and permitted it to be shown in opening statement. From that point on, the case was over and the defendant knew it. The jury saw the video in opening statement and knew through their own visual sense that the defendant should not have attempted the left turn in question prior to the collision. They saw the video on two other occasions during the trial, once during the testimony of the accident reconstruction expert and again when the filmmaker appeared before the jury to describe the process of making the visibility studies. The court also made the video and a tv monitor available to the jury for its use in deliberations. Post-trial interviews revealed that the video in opening statement did have the significant impact that all parties believed it would and assisted the jury in developing accurate perspective with their own senses on how to view the liability evidence in the case. CONCLUSION The shrinking attention span and the media-bred expectations of the general public have significant consequences in the courtroom. We ignore these things at our peril. The fast paced, visual approach to courtroom trials is here to stay. The trial lawyer must learn the techniques and production values of film, television, newspapers and magazines, adapting them to the organization and presentation of a jury case. Old scripts and rituals of trial practice must give way to the rhythms, dramatic pace and concentration of information which comes in the best mass-media presentations. Done correctly, it will neither trivialize nor denigrate the process, but rather insure that the jury is interested, informed and entertained. * © William S. Bailey, All Rights Reserved MARSHALL McLUHAN and QUENTIN FIORE, THE MEDIUM IS THE MASSAGE, 117 (1967) ALAN J. MORRILL, TRIAL DIPLOMACY, 26 (2d Ed., 1974) THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES, 41 (3d Ed., 1992) HARRY KALVEN and HANS ZEISEL, THE AMERICAN JURY (1966) ALAN J. MORRILL, TRIAL DIPLOMACY, 22 (2d Ed., 1974) JAMES W. McELHANEY, EFFECTIVE LITIGATION (1974) THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES, 41 (3d Ed., 1992) Washburn v. Beatt Equipment Co. , 120 Wn.2d 246, __ P.2d __ (1992). Taken from Pretrial Hearing remarks of defendant's attorney on August 7, 1990 at pp. 14-16 of trial transcript. 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) See, e.g., Kelley v. Great Northern Railway Co. , 59 Wn.2d 894, 371 P.2d 528 (1962). See , e.g., State v. Hardamon , 29 Wn.2d 182, 186 P.2d 634 (1947); Kellerher v. Porter, 29 Wn.2d 650, 189 P.2d 223 (1948). See , e.g., State v. Piche , 71 Wn.2d 583, 4th V.O. P.2d 522, cert. denied , 390 U.S. 912, 88 S. Ct. 838, 19 L. Ed.2d 882 (1967). See , e.g., Kelley v. Great Northern Railway Co. , 59 Wn.2d 894, 371 P.2d 528 (1962). See , e.g., TEGLAND, 5A WASHINGTON PRACTICE, § 244 (1989). TEGLAND, 5A WASHINGTON PRACTICE, §243 (1989). TEGLAND, 5A WASHINGTON PRACTICE, §243 (1989). Holman v. Mullan , No. 87-2-07199-1, (Wash., Pierce County Superior Court, March 30, 1992 ) |
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