| 1000 grains of sand or one shining piece of sea glass? | | | | you hire a professional, you will get the most bang for |
| What would capture your attention when standing on | | | | your buck by expecting that professional to take your |
| the beach? This is the challenge of preparing exhibits | | | | ideas, refine them and make them better. |
| for trial. You need the sand for the foundation of your | | | | Don't spend the big bucks unless you know the exhibit |
| case, but you also need that shining sea glass - that | | | | will help you not hurt you: |
| key exhibit that will you help seal the deal. Many | | | | Let's take animation as an example because this is the |
| lawyers try cases that fill up boxes and boxes with | | | | one type of trial exhibit that can literally cost thousands |
| documents. As a trial consultant, I help plaintiff and | | | | and thousands of dollars. Some cases naturally lend |
| defense lawyers sift through their cases and test | | | | themselves to animation but creating a costly |
| them out well before trial with focus groups and mock | | | | animation without knowing how it will impact jurors can |
| trials. Through this work, I've learned the following things | | | | be a big mistake. For example, in a case involving |
| about trial exhibits: | | | | allegations that a police officer used excessive force |
| Winning exhibits shout out key themes and leave | | | | by shooting the driver of a car, an animation was |
| jurors with a clear conclusion about your case. | | | | created by a plaintiff's attorney. The plaintiff's attorney |
| Sometimes the winning exhibit is just a piece of paper, | | | | spent his own money because he thought the |
| to which nothing more is done except enlarging it for | | | | animation would clearly depict that the police officer |
| trial. For example, in the process of preparing a focus | | | | was not in danger and shooting the driver was |
| group for a plaintiff's employment lawyer, I came | | | | unreasonable. The lawyer made that same point with |
| across a document where the supervisor catalogued | | | | a diagram, showing that the police officer was off to |
| the plaintiff's shortcomings in an email. I asked my client, | | | | an angle so that even if he stood still, the car would |
| "Why aren't we using this?" My client said, "oh, THAT. I | | | | have missed him, and that he could have gotten out of |
| am going to file a motion in limine to try to keep that | | | | the way. But the lawyer wanted this diagram to come |
| out of evidence." He felt this document was too | | | | to life, which is where the animation came into play. |
| damaging to his client and felt the case would fare | | | | By the time the lawyer conducted the mock trial, he |
| better without it. Since the whole point of a focus | | | | had paid for all but the final tweaks on his prized piece |
| group is to test out all key aspects of a case, I | | | | of technology. When the animation was presented to |
| suggested that we include it, just to see what would | | | | mock jurors, they reacted opposite of what this |
| happen. | | | | attorney expected: By making the scene come alive, |
| The mock jurors reviewed many documents at the | | | | jurors were suddenly standing in the police officer's |
| focus group including this one. Lo and behold, not only | | | | shoes, with a moving car coming towards them. Now, |
| did this document matter, but it was pivotal: Jurors read | | | | the simple math of calculating an angle, which would |
| it and came to the unanimous conclusion that the | | | | have shown the officer was off to one side, was |
| supervisor was out to get the plaintiff; it was the | | | | irrelevant. Instead, jurors saw a police officer in close |
| smoking gun, proving discriminatory motive. Why? For | | | | proximity to a vehicle that was quickly moving closer |
| one simple reason: The email was written after | | | | and closer. |
| midnight. Jurors noticed this immediately and deemed it | | | | Upon learning that his animation actually hurt his case, |
| proof-positive of pretext. During their discussions, mock | | | | the lawyer did the smart thing and decided not to use |
| jurors jeered at the notion that a supervisor could be | | | | it and he was able to win his case. It is interesting to |
| legitimately motivated to write a "counseling memo" in | | | | consider what would have happened if the defense |
| the wee hours after midnight. The plaintiff found his | | | | had used the animation instead? The animation would |
| shining piece of sea glass and it happened to be a | | | | have depicted the police officer's location with a car |
| small but critical detail on one piece of paper. | | | | moving towards him. The plaintiff knew that this was |
| Always, always, always use a time-line. | | | | exactly what jurors needed to stand in the police |
| No matter what the case, the subject matter, the | | | | officer's shoes but the defense lawyers had no idea. |
| simplicity or the complexity, you should always use a | | | | The point is that when one side is working hard to |
| time-line. If I had $100 for every lawyer who called me | | | | develop and test out effective exhibits, the other side |
| on the eve of trial without a time line, I'd be one more | | | | may be asleep at the switch. |
| consultant using tired old clichés but I'd also be | | | | Don't be afraid to be your non-technological self |
| rich! And for every time-line that is actually used at trial, | | | | In the rush to use technology for everything, some |
| I'd be even richer if I had $100 for every one that was | | | | lawyers feel disadvantaged when their exhibits don't |
| overloaded with detail. | | | | have that glossy, computer-enhanced sheen. The key |
| Time-lines are supposed to give jurors a road map | | | | isn't to focus on what everyone else is doing or to |
| and not a head-ache. | | | | always use the latest and greatest technology. The |
| To avoid ruining your time line with too much | | | | answer lies in using exhibits that transform that look of |
| information, remind yourself that an effective time line | | | | confusion to a look of, "OH. Now I see." |
| judiciously references only a few key events so jurors | | | | There is no shortage of examples where lawyers use |
| can look at it quickly and understand almost instantly | | | | nothing more than their bare hands, or paper and |
| what you are trying to establish. If a case spans many | | | | magic markers, to bring home their point. I worked with |
| years and complex events, you might need more than | | | | a lawyer who during a mock trial, tested out a |
| one time line. Then, jurors can understand the key | | | | home-made exhibit that worked like a charm. He took |
| events and themes for each critical time period and | | | | cardboard boxes, wrapped them in brown paper, |
| you can use a different demonstrative that puts all the | | | | attached wires to them, and used them to show jurors |
| puzzle pieces together. | | | | the simplicity of electrical concepts. It looked like a 6th |
| There are exceptions to every rule and sometimes it | | | | grade science project and it made all the difference in |
| does make sense to load up a time line with details, | | | | whether jurors were able to understand his client's |
| but only if those details help illustrate a particular point. | | | | case. |
| For example, before and after. | | | | The beauty of this exhibit was that it sent the very |
| - Before she complained of discrimination, she was late | | | | important message to jurors that "this is NOT over |
| on 25 different days. Illustrating every date she's late | | | | your heads. You don't need to be fooled by hired-gun |
| helps show that she wasn't discriminated against. In this | | | | experts. A simple cardboard box is all you need." That |
| case, you would want your time line to look cluttered | | | | was the perfect message in a case where plaintiff's |
| because the clutter is actually proof of an employee's | | | | victory depended entirely on experts. |
| poor performance. | | | | In sum: |
| - Before Smith & Company wrote an internal | | | | The rule for good exhibits is the same for any kind of |
| memo, complaining that the project wasn't profitable, it | | | | communication during trial: You always have to |
| had 50 employees on the job; after the memo was | | | | remember who your audience is and give your |
| written there were only 10 employees on the job. In | | | | audience the tools they need to truly understand - not |
| this case, you'd want to visually depict the difference in | | | | just the facts, but the significance of those facts. |
| the number of employees in a way that goes beyond | | | | Keep in mind that winning one's case is often a |
| a mere bar chart. Why? Because 50 employees can | | | | separate issue from having good trial exhibits. From |
| be visually depicted as players covering a field, | | | | my vantage point, I see two things all the time: First, too |
| showing depth and breadth versus a bar chart that | | | | much money is spent on finished trial exhibits that |
| only illustrates a difference in height. | | | | aren't tested out until a mock trial weeks before the |
| When you use a time line to show underlying motives | | | | trial date. The objective feedback from lay persons |
| (discrimination, retaliation, under-staffing the job | | | | either requires more costly changes or causes |
| because of lost profit), visually depicting quantifiable | | | | lawyers to discard finished exhibits altogether. Second, |
| details on a time line is incredibly effective. You can | | | | too many lawyers commit themselves to a particular |
| use easy visuals such as: | | | | exhibit without ever getting the objective feedback |
| - Little people to represent employees (people who | | | | they need to differentiates the sea glass from the |
| look like "The Game of Life,") | | | | thousand grains of sand. |
| - Blue ribbons to represent awards | | | | So my advice to all practitioners who are trying to tell |
| - Stacks of dollar bills to represent lost profit (and lost | | | | the right story with the right exhibits, test out your ideas |
| money should be stacked beneath the time line, | | | | early on and use that testing process to refine not only |
| otherwise it looks like a mountain of money, which | | | | your exhibits, but your case presentation as well. After |
| would send the wrong message.) | | | | all, exhibits are not only the nuts and bolts of your |
| Working with a professional can help you ensure that | | | | case, but they are the thematic blue print - giving jurors |
| your exhibit sends the right message. Too often, | | | | the big picture of what your case is really about. |
| lawyers hire professionals to depict every last detail. If | | | | |