Can Visuals Interfere With Your Argument/Testimony?

 

Our world has become a ‘world-in-pictures’ with virtually everything translated into a visual format, or at the very least, accompanied by an icon or picture of some related sort. Given this reality, litigators have been encouraged to create visuals and graphics to support the presentation of their case, to the maximum allowed by the Court.

All this is well and good, and indeed, has been proven effective in case after case. However, which visuals, and how they are designed to be most persuasive, can be elusive.

Lawyers are often tempted to load up visuals with as much information as possible, understanding that the visual is more compelling than the spoken word. In theory, this is accurate. However, you and your witnesses still need to be heard as well as visually represented. Too much information on any given graphic can lead to “inattentional deafness.” Simply stated, the more complicated and comprehensive the visual material, the less subjects were able to respond to what they heard.

This is true for jurors as well. Over-complicate your visuals, and jurors will not be able to absorb what you’re saying. If your case is such that you must present an information-loaded visual, be that in still or video form, be quiet while that information is imparted visually, at least for a few moments, and then speak, preferably with the information-loaded visual out of view. 

The Power of Privacy: Juror Questionnaires

 

You would think that potential jurors, knowing that their written juror questionnaires will be scrutinized by the lawyers on both sides and by trial consultants and other professionals, would respond to written queries the same as they do to oral voir dire. Not.

Fascinating research (Flores, 2011) revealed something I long suspected from years of trial consulting: people feel that what is between themselves and a sheet of paper is private. Potential jurors are most honest with their true thoughts and feelings in response to jury questionnaires, to a surprising degree.

Jurors in the study failed to answer truthfully to 67% of voir dire questions, 33% of attorney sidebar questions, fully 50% of judge sidebar questions, and even to 20% of questions asked in chambers.

What does this mean to you? Simple. Whenever possible, use a jury questionnaire. Jury questionnaires do not need to be arduous, overwrought documents. Streamlined and written for maximum effectiveness, juror questionnaires will give you the most truthful look at how your potential jurors think and feel.

Jury questionnaires can make all the difference in winning your case.

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Flores, D.M. (2011). Methods of expanded voir dire and written questionnaires: Experimental results on juror self-disclosure and implications for trial practice. Court Call, Summer, 2011, pp. 1-6.

Persuasion 101: Seeing is Believing

 

A few years back, a Brigham City orthopedic surgeon (Dr. Dewey MacKay) claimed that the jury mistakenly convicted him of illegally prescribing medication because they neither understood the facts of the case, nor how chronic pain is managed.

Jurors interviewed at the time, however, said Dr. Mackay’s comments were misguided. The jurors were emphatic that they took every single count one by one and discussed each count in detail. Not only that, but the jurors explained that they used both the chalkboard made available to them as well as multiple sheets of paper to draw things so everything was visual for everyone.

This is not a one-time comment. This is something I hear over and over again both in focus groups and from jurors post-trial.

“So everything was visual for everyone.” That’s the key. That’s how you must be able to present your case if you are to prevail: visually. Regardless of the nature of your case: personal injury, med mal, construction defect, eminent domain, contractual dispute, intellectual property dispute, whatever, you must be able to find ways to translate testimony and facts into visual elements.

That means much more than flashing deposition or other text on the screen. Visual rendition of testimony means coming up with graphics, diagrams, and bottom line charts. It’s answering today’s jurors’ constant need to “see it” before they believe it.

When you, the lawyer, provide the jury with compelling visuals to clarify and emphasize your points, you pave the way for the deliberations to favor your interpretation of the facts. This is far better than relying on the jurors’ ability to render your points visually, for they may or may not do so accurately.

For more Winning Tips, go to https://noellenelson.com/newsletters/newsletters-a-winning-tip/.

Create a Trustworthy First Impression

 

Personal experience tells us how powerful first impressions are. Indeed, research reinforces our innate understanding of first impressions. The study suggests it takes just 20 seconds to detect whether a stranger is genetically inclined to being trustworthy, kind or compassionate. That’s less than a minute for you, or your witnesses, to establish a credible first impression with the jurors, one which, once established, will be very difficult to change or alter in any way.

What was it about the strangers that led the study subjects to figure out whether or not the stranger was trustworthy? Very simply, the “trusted” strangers displayed more trustworthy behaviors – more head nods, more eye contact, more smiling, more open body posture.

All of these behaviors are easily accessible to any of us. For that matter, when you’re in a relaxed, comfortable situation with friends or family, you’re likely to display these very behaviors without thinking about it.

Allow yourself to present yourself to the jurors more as who you are with friends – trusting and therefore trustworthy, and encourage your witnesses to do the same. The only caveat is that smiles must be appropriate to the situation, and when in trial, the moments when it is appropriate to smile are limited.

The True Value of Computer/AI Animation In Court

 

Most cases that don’t settle end up in trial because there are grey areas in the case--situations or testimony that can be interpreted in different ways. Computer/AI animation in court is often thought of as an effective, albeit expensive, way to show events. Research tells us, however, that there is a much more compelling reason to use computer/AI animation.

Computer/AI animation makes your interpretation of the event or situation more concrete to jurors. There is always flux and indeterminate issues within any accident or event reconstruction, which the opposing experts will argue at length. But once the jurors see and hear for themselves your version of said reconstruction, they are far more inclined to believe it. Computer/AI animation is an easy, immediately understandable way to present your belief of “what happened” in a way that makes it real.

That being said, the facts must be solidly incorporated into the animation. Jurors will pick out the slightest incongruence between the known facts (skid marks, length of surgical incision) and the animation. If they do, the persuasiveness of your animation will be destroyed.

 

Answer a Primordial Question for the Jurors: Who?

 

The names, acronyms and abbreviations so familiar to you are not to the jurors. You may think that saying, for example, “Acme Building Supply, which we’ll now call ABS for convenience,” is enough to warrant saying “ABS” through the rest of your trial.

But “ABS” has no guts to it, has no uniqueness, no personality. As laborious as it may be for you to repeat the full name, “Acme Building Supply” has a history. It’s associated with events and people--it has a life. “ABS” is just another bit of alphabet soup.

Be sure to use the full names of people, entities or objects throughout your trial. Avoid the use of pronouns or abbreviated references. Jurors often have trouble keeping track of who did what to whom. They will be totally lost if they must also concentrate on which "he," "she," or "it" you are now referring to.

Certainly, well-known abbreviations are acceptable, but generally speaking, abbreviations used too often only serve to confuse jurors. A confused juror is an unsympathetic juror. An unsympathetic juror is the one who could cause you to lose your case.

Explain “Why” to Make Your Case Matter to the Jurors

 

In a courtroom, it isn’t necessarily the attorney with the best facts who wins, but the attorney who best explains the relevance of those facts both to the case and to the jurors.

Certainly, you need solid evidence, but here we’re talking about what you need to do to get the edge. What, given the usual state of affairs by the time a case gets to court where both sides believe their evidence is strong enough to prevail, can you do to give you the advantage over your opponent?

Explain why. Why does your interpretation of the facts make sense? Why should the jurors care that their verdict favors your client? Why should this matter to the jurors? How does it impact their lives (work, family, children, safety, etc.), preferably in an immediate and direct way?

Explain through your experts, your lay witnesses, and most importantly, your closing argument, and of course your opening to the degree allowed.

We invest in the personal, in that which strikes home. That’s why stories have such an impact. They touch the personal. So too with explanations. Make your case matter, not just to your client, but to the jurors.