Fury Bailey - Personal Injury - Wrongful Death Attorneys

VISUAL ARGUMENT

By William S. Bailey ã

Fury Bailey

710 – 10 th Avenue East

P.O. Box 20397

Seattle , WA 98102

(206) 726-6600

billb@furybailey.com

BEYOND INFORMATION COLLECTING

Lawyers are detail oriented as a profession, adept at collecting information. The civil rules focus on the ways in which this can be accomplished – written interrogatories, requests for admission, subpoenas for records and depositions. In a case of any complexity, as the time of trial appears, most lawyers have accumulated quite a pile of paper. The trouble starts with sorting out and using only what will be most persuasive to a lay jury.

Lawyers lose perspective as their competitive juices draw them ever deeper into the fray. Jurors will not care about much of the information obtained in discovery. The trick is to find the needle of persuasion in the haystack of paper. This is a task that most lawyers are ill equipped to perform, inclined toward quantity over quality. Even in cases where documents are important, not much is done to enhance their visual appeal through timelines and summaries.

The usual lawyer saturation bombing of information is a huge mistake! In his valuable book, You Are The Message , Roger Ailes recounts an anecdote in which he pointed out the folly of too many details in his advice to President Reagan before a televised debate:

If you do that, you'll lose again . . . You didn't get elected on details. You got elected on themes. Every time a question is asked, relate it to one of your themes. You know enough facts . . .

You Are The Message at p. 22.

TELEVISION HAS FOREVER CHANGED COMMUNICATION

Nothing in our law school education prepared us to be effective communicators. The Socratic method by which we were taught, is, at best, obtuse and nebulous. The average layperson would have no part of it. While we learned to tolerate the boredom of law school lectures, this is a particularly poor model of communication for engaging jurors. None of the tools necessary to persuade jurors were offered in law school, such as communication skills, behavioral psychology, effective use of images and graphics or theater arts.

The lack of professional training in communication places lawyers at a distinct disadvantage in the television era. As Roger Ailes points out, television:

has set the style of a modern communicator – relaxed, informal, crisp, quick and interesting.

You Are The Message at p. 206. The fast pace of television has raised the expectations of the audience, who expect a point to be made quickly and in an interesting manner. For example, the average television news story lasts only about a minute and a half. The whole time, pictures flash up on the screen as the broadcast journalist tells the story. Lawyers now need to take the same approach in the courtroom, making their argument visually.

SALES RESISTANCE

Modern day jurors have a sophisticated view of the court process. They know that each side to a lawsuit is expected to act as an advocate, pushing the strongest possible version of the facts in favor of their clients. But this leads to skepticism and sales resistance on their part to any lawyers' message. Nearly anything said to a jury by any lawyer is likely to be filtered and discounted, at least initially. The same filters do not exist for visual images though, as seeing is believing. This difference makes the use of visual argument critical.

THE GOAL – TO BE BELIEVED AND REMEMBERED

The best way to persuade other people is through the visual. As noted by Diane Ackerman in A Natural History Of Senses :

Seventy percent of the body's sense receptors cluster in the eyes, and it is mainly through seeing the world that we appraise and understand it. . . . Our language is steeped in visual imagery . . . Seeing is proof positive.

A Natural History Of Senses , p. 230.

Language that creates visual images is more effective than that which does not, even if the speaker does not show the audience any actual visuals. As stated by Roger Ailes:

Images help. If you can see a picture in your mind and describe it, others will stay tuned in. . . . There's a lot of statistical data that have to be used in any financial presentation. We're stuck with it. The trick is – whenever possible – to go beyond the deadly abstraction of numbers and relate what you have to say in a way that brings the numbers to life. Business people can be remarkably adept at expressing technical ideas in a creative way . . . If speakers can paint word pictures, as opposed to just using words, or can use emotionally charged, intriguing words, they'll be more interesting.

You Are The Message , p. 16.

In the end, the best measure of any presentation is whether it is believed and remembered. In his classic work, The 100 Greatest Advertisements , Julian Lewis Watkins summarizes the two reasons that make advertising effective.

•  an idea or concept that resonates with the audience;

•  delivered with a credible sincerity that reaches out from the page and onto the heart of the audience:

The main focus of any communication should always be on what will influence the audience:

Persuasion is still the destination . . . and you can reach it from almost any point on the creative compass if you've got an idea worth traveling in.

The 100 Greatest Advertisements , preface, p. 2.

JUNG'S VIEW OF SYMBOLS AS A KEY TO UNDERSTANDING HUMAN BEHAVIOR

Carl Jung was the founder of the School of Analytical Psychology . One of its fundamental principles is the existence of a collective unconscious, a universal or unconscious mind that is shared by all members of the human race and heavily influenced by symbolism. These symbols are usually visual and help people make sense of the past and present, while pointing them toward the future. Understanding them is the key to unlocking the fundamental thoughts and impulses of all people. It is no accident that all of the world's great religions make heavy use of visual symbols.

In addition to the collective unconscious, analytical psychology describes a personal unconscious, which is acquired during the individual's lifetime. This too is reached through symbolic images, shaped by the culture in which the individual was raised.

In Jung's view, the archetypes of human experience, which derive from the deepest unconscious mind, reveal themselves in the universal symbols of art and religion, as well as in the individual variations of the personal unconscious. Jung regarded this understanding as the key to the cure of souls, forming the basis of his therapeutic work.

While a trial lawyer does not function as a therapist, Jung's work points up the importance of recognizing and harnessing visual symbols in the advocacy process. They go to the very core of humanity.

KEEP IT SIMPLE LIKE COMIC STRIPS

In his intriguing book Understanding Comics , Scott McCloud describes the appeal and power of their storytelling. Comics rely on visual symbols and character archetypes, expressing ideas and cultural values in the pictures and words used. The images are often simple and basic, so as to not distract from the underlying message:

This is the primary cause of our childhood fascination with cartoons, though other factors such as universal identification, simplicity and the childlike features of any cartoon characters also play a part. The cartoon is a vacuum into which our identity and awareness are pulled . . . an empty shell that we inhabit which enables us to travel in another realm. We don't just observe the cartoon we become it.

Understanding Comics , p. 36.

The same principle of simplicity from comics is the key to shaping the visual approach of the trial lawyer. While you should never insult or underestimate the intelligence of the jury, you must also realize that none of them will be nearly as interested about your case as you are, with little tolerance for boredom and obscurity. Consequently, the images you show them must be just like in the comics, simple and effective, enhancing the message, not distracting from it.

PULLING IT ALL TOGETHER

The preceding sections have touched only lightly on communication, strategy, psychology and the primacy of the visual. How do these abstract principles translate into effective strategies to be used in individual cases? The following three case examples will illustrate the practical application of visual argument to the jury in three fact patterns typically faced by a trial lawyer. Pictures alone aren't enough, they have to be the right ones, used in the right way. The lawyer has to develop a finally honed and executed strategy for visual argument through images that persuade the jury.

PREMISES LIABILITY – CONFRONTING DEFENDANT ON CAMERA AT THE SCENE OF A DANGEROUS SITUATION THAT CAUSED SERIOUS INJURY

In the case of Horsley v. Hilton Hotels Corp. , King County No. 03-2-39 922-1SEA, plaintiff sustained multiple fractures in his right leg following a serious fall at the front entrance of the Hilton Doubletree Guest Suites in Tukwila , Washington . The decorative brick facings on the concrete front steps had been allowed to deteriorate in the major traffic patterns over the years, so that the once straight leading edge of the each step had multiple “bite marks” taken out. This likely was caused by suitcases on rollers used by many arriving and departing guests over the years clunking down the stairs.

As we all know, premises liability cases are thought to be losers. Jurors seem quick to blame the injured party, presumably on the theory that they should have seen the hazard and avoided it. In fact, my capable opponent's deposition of my client focused at great length on this hazard being open and obvious, that he simply should have placed his feet in areas where the brick facings of the steps were not chipped.

In response to my discovery requests, which focused heavily on corporate brand standards for hotel safety and appearance in this particular chain, I obtained a series of documents which described cash flow and deferred maintenance problems at this hotel. Multiple failing grades had been given to the hotel on the twice yearly compliance audits by the national chain it was affiliated with.

However, the documents, by themselves, likely were not of a sufficient gravity to overcome juror resistance to finding for the plaintiff in this slip and fall case. I had to come up with a visual strategy to dramatically imprint the significance of this deferred maintenance on the mind of the jurors, imputing moral blame to the defendant in a way they would not forget.

I noted a video deposition of the manager of the defendant hotel, which stated that a portion of the examination would be conducted on the still damaged front steps of the hotel. I based this on CR 34(a), which permits a party to enter upon the other party's premises for discovery purposes. This portion of the deposition was vigorously resisted by the defendant, citing interference with the conduct of hotel business, improper motives on my part and general unfairness. After hearing from both sides, the trial judge permitted the deposition to proceed. Under these circumstances, the glib well-spoken manager of the hotel condemned himself by attempting to downplay the obvious deferred maintenance which appeared on camera with him. Placed in this situation, with the backdrop of the obvious damage to front steps, it did not matter what answer this witness gave. Either way, the point that the hotel had gambled with the safety of the guests was made visually and effectively.

PROVING PRODUCT DEFECT AND FAILURE TO TEST IN A COMPELLING WAY

On August 3, 2003 , 21-year-old Denise Colbert was killed by carbon monoxide poisoning as she swam near the rear of a ski boat manufactured by defendant Moomba. (Pierce County Superior Court No. 03-2-13 666-8.) A diligent search of the literature revealed a growing awareness in the medical profession and in the boating industry that exhaust from boats, even in the open air, presented an unacceptable health and safety risk of carbon monoxide poisoning. A number of scientific studies discussed the high concentrations of carbon monoxide in and around the rear of ski boats under various conditions. However, while valuable, this information was dry and scientific, lacking dramatic impact.

I looked for images to use as backdrops in cross-examining the CEO of the defendant manufacturer on the failure of his company to test its boats for the carbon monoxide danger. I wanted this examination to be punchy and compelling, not a dry discourse on scientific or nautical design principles.

A voluminous government study on carbon monoxide poisoning in boats had a color photo of researchers holding an exhaust gas measuring device over the end of a ski boat. This equipment did not look inordinately expensive and the testing process seemed quite simple – a matter of just taking the boat out and holding the instrument over the rear to get readings.

I put this photo up on a monitor and asked the CEO of the defendant's company to look at it. In the course of subsequent questioning based on the photo (that he denied ever seeing before) he admitted that his company had never tested any of its products in this fashion, could have done so if he had directed them to and that cost was not a barrier to accomplishing this. Though the defendant CEO tried to evade the thrust of these questions on testing their product to protect human life, the visual image of the simple and inexpensive test was a constant reproach to his words. It didn't matter what his verbal answers were, the testing photo said that it would have been easy to discover the carbon monoxide danger if they had really cared about the well being of product users.

BICYCLIST IN CROSSWALK HIT BY SUV – WHAT WAS THERE TO BE SEEN?

In Philippides v. Bernard (King County No. 01-2-09 974-4SEA) the defendant driver struck and killed the decedent bicyclist, who was proceeding in a marked crosswalk. The defense was a general denial, that the motorist could not have seen the bicyclist and that the bicyclist should not have entered the crosswalk until it was safe to do so.

We conducted focus groups on this case to learn what jurors might think about the facts. The Seattle Police Department had done a very thorough investigation of this accident, taking several hundred photographs. The key issue was visibility, particularly whether there were any obstructions to the view of the motorist that would excuse his striking the bicyclist in the crosswalk. We ended up selecting only two police photos, one of which we blew up to billboard size. This showed the decedent Yianni Philippides' bicycle up against the front of the Isuzu Trooper driven by defendant. Yianni was over 6 feet tall and the seat of the bicycle itself came up to the top of the leading edge of the front hood of the Isuzu. It was obvious just looking at this photograph that the bicyclist could have easily been seen by the defendant if he had been paying attention.

The second photograph was used to rebut the defendant's excuse that his view of the decedent was blocked by cars in the right turn lane. In this one, the police parked a patrol car in the right hand lane with a bicyclist stopped at the corner where decedent was prior to entering the crosswalk. The photo was taken through the windshield of an approaching patrol car, attempting to simulate defendant's version of the events. The bicyclist was plainly visible, even with a car in the right lane. When confronted with this image, the defendant had to admit that he could see the bicyclist in the photo, seriously undermining the credibility of his claimed obstruction of view.

CONCLUSION

Though lawyers have not been trained in the sophisticated use of images, such as those in the fields of marketing and advertising, it is imperative that they learn to make arguments visually. It is not enough to merely conduct depositions and gather voluminous paper based information. Like great advertisements, we must come up with the images which will make our case both believed and remembered. Visual argument is essential for the proper representation of any client. While it does not guarantee success, effective visual argument greatly increases the chances of victory.

ã 2005 William S. Bailey, All rights reserved.

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