The Ten Commandments Of Demonstrative Evidence In Litigation
Published in Los Angeles Lawyer, April 2004
- Expert Testimony
- Damages Analysis
- Investigations and Forensic Accounting
- Bankruptcy and Restructuring
- Computer Forensics / Electronic Discovery
- Sarbanes-Oxley and Nonprofit Whistleblower Solutions
- Valuations and Appraisals
- Financial Reporting
- Tax Advice and News
- Other Current Events and Economic Commentary
- Interactive Tools and Personal Financial Advice
If you want to improve your chances of success, commit these ideas to stone. Then follow them religiously.
1. Keep it simple
This is the greatest commandment, and the one most frequently violated. Too much information in a visual aid will confuse rather than clarify. Creativity does not mean complication. To achieve your goal, invoke the following guidelines:
- Each chart should have only one major point. Use multiple charts that build on one another for more complex ideas.
- Details that are too small to be easily seen should be eliminated from the chart. If necessary, create a second (and simple) chart.
- Eliminate extra words, numbers, and details. They will not be remembered anyway.
2. Use graphics with every important witness
Studies consistently show that memory increases 700 percent when the information is both explained and shown. We know the truth of the adages, “A picture is worth a thousand words”, and “Seeing is believing”. Armed with this knowledge, you should improve every important witness’s presentation with graphics.
Remember show & tell in kindergarten? These inexperienced presenters naturally place their emphasis not on themselves, but on the object that they are showing. By focusing attention on the evidence and away from a witness’s self-consciousness, a presentation improves dramatically. This is true for both expert and lay witnesses.
In addition to improving information retention and improving your witness’s presentation, graphics (i) enhance the jury’s attention span, (ii) increase witness credibility, (iii) forcefully communicate your case’s theme between witnesses, and (iv) facilitate connecting factual data or impeachment between witnesses. If allowed in the jury room, your graphics will also be a tool that can be used by sympathetic jurors to convince the others.
3. Improve interest through variety
Blow-ups of written documents by themselves will cause a jury to lose interest almost as fast as if no graphics are used. Use a combination of illustrations, photographs, pie charts, line charts, bar charts, document blow-ups, and video. Display these through a variety of presentation methods, such as foam boards, models, and on-screen projection.
Variety also means not using graphics for everything. Although every witness should have some graphic support, the litigator needs to select issues that deserve illustration. Visual reinforcement tells the jury that this is something worth remembering. Select issues and ideas that are truly important, and direct graphic attention there.
4. Test your charts with those unfamiliar with your case
You need to be able to explain the key facts and rationale of each of your graphics in a few minutes. If your graphic is unable to be immediately understood by those unfamiliar with your case, then your explanation and/or your graphic needs to be reworked. Your jury will not have studied your case in any way comparable to the agonizing detail that you have mastered. The risk is that what is obvious to you will be lost on your judge or jury.
This does not require expensive jury research, although such research will certainly also be helpful. The small budget case can be reviewed with colleagues and coworkers who promise to be painfully candid in their assessments.
5. Use only properly-scaled and labeled color graphs
All presentations must be accurately scaled to show amounts, measures, times, etc. For example, the y-axis (the vertical line in any numerical chart) should begin with zero, and not skip any amounts through the data that is being shown. Doing otherwise presents a biased picture of how much the graphed data is increasing or decreasing.
Almost every case benefits from a graphical timeline to accurately track key events. Timelines are effective in telling your side of the story by proving or disproving liability, motive and damages. As with any graphic showing data, the timeline should have an accurate scale.
Use color to (i) facilitate and simplify the labels on your charts, and (ii) unify related items within a chart or between charts. Doing so will make your charts intuitive and more simple.
Your charts should include a source of the information that it conveys. This improves credibility and will cause the chart to serve as a reminder of key evidence.
6. Use word charts rarely, if at all
Not all graphics are created equal. Graphics need to show pictures, concepts, and objects – not words and numbers. A typical “PowerPoint” slide presentation consisting of words and bullet points lack creativity and interest. Spreadsheets with numbers are even worse. Simply displaying words and numbers will not do anything to make your presentation memorable or persuasive.
7. Remember the seriousness of the setting
Modern computerized graphics packages have a wide range of clip art, animation, flash movements, and other fancy do-das. That does not mean you need to use them in a courtroom. Sometimes, the most expensive graphics are not the most effective.
Juries have a job to do, and most of them take it seriously. Keep to the basics. Numbers should be presented with simple pie, bar, and line charts. Animations that show how something works are effective, but stay away from animations that show moving objects simply to dress up the presentation.
Overuse of superfluous graphic design elements may make your presentation entertaining, but it will not make it persuasive. The added elements may even backfire by raising the suspicion that you are attempting to hide something by being slick.
8. Charts improve the entire process
Graphics can be useful during settlement, witness preparation, and strategy planning, so develop graphics early in the process. For example, schematics, timelines and other charts that present facts can be used during depositions as a means of having witnesses agree with your presentation of the facts.
Each time you present your graphics, you will need to consider presentation logistics. This is particularly true in courtrooms, where the placement of the judge, jury and other courtroom furniture may limit your presentation options. See the actual layout where your presentation will occur before finalizing your plans.
9. Keep up with technology
Recent computer advances have revolutionized the preparation and presentation of information. Costs are a small fraction of what they used to be. Use of courtroom presentation systems will enliven your case with practically no additional work on your part.
As with everything in your trial, a budget is necessary. Keep abreast of the changing tools so that you can match your client’s budget and the demands of the case – even a low budget matter can afford some graphics. Knowing the changing alternatives will allow you to select the best value for your client.
Document video cameras (sometimes called ELMOs after a particular brand, although many manufacturers exist) are now cost effective for every trial practice. These devises contain a video camera that is pointed down towards a lighted flat area. The video image is displayed onto a large screen. The video camera can zoom in or out to emphasize particular points. The lawyer can write on or highlight portions of the document, which are immediately displayed by the video projection.
Storage of electronic images and graphics is also easier than ever. Hard disk and CD/DVD storage have advanced to the point where one can carry the equivalent of whole rooms of paper documents in your briefcase. There are numerous database packages to summarize and index these documents for easy retrieval.
10. Get help
In the end, each of these commandments is easier said than done. There are a wide range of consultants who are skilled in the technology and methods of producing effective presentations. Have them listen to your case and present ideas based on what they have seen be effective in similar circumstances. Have them bring examples of their work.
Judge them according to how they honor the first nine commandments. Vendors who frequently violate these commandments may be good in other arenas, but they do not have an appreciation of what it takes to make a convincing courtroom presentation. Keep looking until you find someone with the right skill and approach in the courtroom.
David Nolte is a principal at Fulcrum Inquiry with over 25 years of performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.