The power of visual imagery, and the impressions it can create, is still one of the least understood principles in the litigious world we live in. Unlike in times past, successful litigation today, both in the settlement process and in trial, demands an acknowledgement that ours is a highly visual world in which images and impressions have come to dominate information processing preferences and methodologies, and influence decision making on many levels.
The history of law and the records of the courts are replete with stories detailing the masterful use of “the word” to persuade and influence triers of fact and to communicate the nuances of the law and the evidence. In early law, except for the bloody knife or the smoking gun, a lawyer’s advantage lay primarily in his or her ability to put together a persuasive oral argument. In law schools, even today, students are taught to think, to write and to speak with the emphasis on the “words” — the written and oral presentation of evidence.
Because the vast majority of communication that occurs between attorneys, the courts and, in many cases, even the clients, is in written form, cases are too often reduced to little more than pages of briefs, volumes of depositions, boxes of documents and endless motions, the arguments of which are merely oral reflections of the written words.
In the dynamics of the legal process in a highly technical world, however, we must come to understand that while the beginning was and remains “the word,” at the end of the day it is the images that are best remembered when decisions are made. How the facts look and feel in today’s fast-paced, high-tech and highly visual world is often the difference between success and failure in virtually every kind of case. In truth, experience has taught us that the actual evidence is sometimes less important than the images and the impressions that are formed in the minds of jurors and the courts about what the evidence represents.
The legal profession is one of the few remaining bastions of tradition. And while procedure, the law and the evidence may not be easy to change, how triers of fact perceive these elements of trial depends largely on how effectively a lawyer is able to present and implant powerful and indelible visual and mental images in the minds of jurors. Thinking visually and creatively, from early on in case development, can give an attorney a powerful edge.
New tools, technologies and presentation strategies that were relatively new to the courtroom only a decade ago, are available, accessible and affordable, providing attorneys with a wide range of presentation options. More importantly, they are becoming more and more compatible with jurors’ changing expectations of information delivery and increasingly welcomed by judges who recognize the value and efficiencies of providing jurors with information in understandable ways and in less time.
With the new technologies and the changing expectations of jurors, however, we must consider the impact such tools have and understand that admissibility issues that did not exist 20 years ago are now coming into play. For example, consider the use of the TV screen or monitor in the courtroom. Because of our intimacy with it, the television screen has its own, inherent credibility that allows us to perceive even that which is obviously incredible, as more credible.
Studies suggest that with television, information processing is actually performed by the screen, in front of our eyes rather than in our brains. Researchers have studied the effects of television on viewers and found that the images affect us as much physiologically as they do emotionally and intellectually. Digital animations, graphic enhancements and images presented on a TV monitor or projected onto a screen may even, in the future, come under increasing scrutiny as to admissibility.
It is important to remember that just throwing images up on a screen is not the answer. Attorneys must be highly selective and deliberative in their use of new presentation devices, approaching the use of technology in the courtroom with an understanding of and a respect for both the power and the limitations of such resources. It is imperative that presentations be carefully considered and designed to support and to reinforce testimony and evidence in the most compelling ways, consistent with the expectations of jurors and yet within the parameters of the rules of evidence and admissibility.
In lawyering, as in any profession, one absolute is “planning.” Even a great communicator, with proper planning and new tools and resources, can improve his or her game. Creative thinking is a key part of the planning process. Good case presentation planning means that we need to recognize the changing nature of the world we communicate in. We need to know what is available, what tools are most appropriate to the unique nature of every case and how to employ them to maximum benefit without crossing the line.
Technology is changing and improving the once rarified air of the courtroom, making trials more interesting and more efficient, and producing more satisfying results when employed wisely and in creative ways. And while such changes may benefit both the lawyers and the people who must sit in the box and, at the end of trial, will be charged with making sometimes difficult decisions, it also is important to remember that there are some things that should never change. æ
R. Craig Smith is the senior trial consultant at Prolumina Trial Technologies, in Seattle. He is a frequent CLE presenter, author of numerous articles on courtroom communication and trial strategies, and is the author of “Championship Law – Seven Keys to Winning Performance in the Courtroom.” He can be reached at 206-622-6700.
