The Perfect Fit: Tailoring Courtroom Technology to Win Cases

(A version of this article was printed in the premiere issue of NextGen_Law, February 2009. For the complete article with images, please see the attached PDF.)

There’s an old story that comedians made popular in New York City’s Yiddish theaters around 1900; a joke that illustrates a critical lesson about courtroom technology.

There was once a man who had wanted to buy a custom-made suit his entire life. After years of scrimping, he finally saved enough money and went to see a tailor. The man carefully explained to the tailor exactly the kind of suit he wanted – what the buttons should look like, the kind of pleats he wanted, how much cuff to create – all of the details.

Throughout this description, the tailor never bothered to look up from his newspaper. When the man had finished, the tailor reached over to a rack of what appeared to be 20 identical black suits, randomly grabbed one, and said to the man, “Here is your custom-made suit. That’ll be $2,000.”

“Wait a minute,” said the shocked customer. “Don’t you have to at least measure me or something?” “No,” replied the tailor. “Trust me! I have been doing this for 40 years. Just put on the suit. You’ll see.”

The man went into the dressing room and tried on the suit. Not surprisingly, he looked terrible in it. The right sleeve was too short; the left one was too long. There was way too much room in the backside, yet he could barely button the pants at the waist. And the coat looked like something that someone twice his size would wear.

“This suit looks terrible!” said the man.

The tailor replied, “The problem is not the suit, it’s the way you’re wearing it. Twist your body to the left, pull your right arm out a bit, hunch your back over, and throw your hips out.” The man did as he was told, distorting his body in order to accommodate the suit. And guess what? After going through the painful contortions, the suit looked great. So the man bought the suit and, still wearing it, he hobbled – as best he could – out of the shop.

A few blocks down the street, the man saw two attractive women. Naturally, he wanted to impress them so, remembering what the tailor had said, he twisted his body to the left, pulled up his right arm a bit, hunched over, and threw out his hips. As the two women walked by, the first whispered, “Oh that poor man! What do you think happened to him?” “Beats me,” said the second woman. “But what a nice suit!”

Many lawyers laugh at this story without realizing that they are putting themselves in a similar position every time they choose which technology to use during trial. These lawyers twist, turn, and otherwise distort the way they present their case in order to make it fit a particular form of high-end technology – regardless of whether that technology is right for the point they are making, the case they are trying, or their personal style. The profusion of available trial technology means that many trial attorneys are more confused than ever. And it’s up to those of us who are familiar with technology to help them make better choices.

Most people who criticize high-end technology get categorized as either cynics or luddites. I am neither. In fact, my colleagues and I make our livings designing state-of-the-art demonstrative evidence and other teaching tools for use in complex civil and criminal cases. (I’m also a trial lawyer, by the way.) Over the years, we have worked on more than 1,500 cases throughout the United States, using every high-end technology from Adobe Flash-based platforms that integrate multiple 3-D animations, to document databases, 2-D animations, and a variety of other computer-generated graphics. At the same time, we also have coached lawyers on how to best use the chalkboard – not only in cases where there was no money for graphics, but also in nationally publicized cases where money was no object and the lawyer could use whatever means necessary to illustrate his point.

Even though we’re capable of creating and running state-of-the-art computerized trial graphics, we have become aware that such graphics are not the “be all and end all” of courtroom presentations. Instead, we have learned to tailor the visual strategy and technology to each message, each case, and each attorney to truly meet our customers’ needs. Otherwise, the jurors are likely to say, “Oh that poor attorney seemed so confused. But he sure showed nice cartoons!” (By the way, I deliberately chose the word “cartoons” to emphasize the trivializing effect that badly chosen technology can have on even the most profound demonstrative material.)

How can you begin to choose and use technology more efficiently in the courtroom? Over the work of several decades, we have developed a handful of basic rules to build winning trial graphics.

Just hearing the words “courtroom technology” is enough to scare some trial lawyers. Often, these fears are based on the belief that courtroom technology is something new and entirely unfamiliar, something that involves computers, and screens, projectors, and disks of some kind or another.

In fact, technology existed long before the computer and there are many kinds of technology that can be used in the courtroom besides computers. As a general rule, I divide courtroom technology into two categories similar to what you find in the rock and roll world: acoustic and electric.

Acoustic (or non-electric) technology includes blackboards, newsprint, blow-ups, exhibit boards, and models – tried and true technology that lawyers have used for generations and which can still be used to great effect in the courtroom. Electric technology includes overhead projectors, computers, videotapes, animations, and Flash – newer, slicker technology that can be powerful for certain kinds of presentations.

Traditionalists – trial lawyers who exclusively rely on acoustic (non-electric) technology – will often justify their bias by claiming that they do so because they are afraid the jury may perceive them as being “too slick.” This excuse does not fly anymore – in fact, it may never have been valid. I’ve observed hundreds of jury trials over the past decade, and while I’ve heard lawyers try to make their opponent’s use of high technology an issue, I’ve never seen this tactic actually work.

That’s because most jurors have become comfortable with high- tech in their own lives. I think of my own family as a useful guide to peoples’ attitudes towards technology. My children grew up with technology; none of them remembers life without computers and the important information they associate with these machines. My wife is old enough to remember FORTRAN, punched computer cards, and late-night visits to the “computer lab.” My parents readily admit to having no understanding as to “how these machines work.” But, what they all share in common (besides of being representative of the age range of jurors on your next jury) is that long ago they stopped thinking of electronic displays as something unusual. In fact, I think it is fair to say that they more or less expect to learn using these tools.

Another reason you shouldn’t worry too much that a technologically sophisticated courtroom presentation would be perceived as “too slick” is that jurors hate it when they think their time is being wasted. They want to do their civic duty but then be able to go home as quickly as possible, which means they want to get their information without a lot of wasted effort. Lawyers who use electronically displayed evidence are often seen as being prepared and efficient – not slick.

So is it always better to dazzle jurors with electric technology? That brings us to a second important observation:

I remember the first time I went up against an opposing counsel who used high-end technology to display his graphics. It was during a two-day settlement conference. The Plaintiff’s lawyer arrived at the mediator’s office a day early just to set up the equipment he needed to project his documents and videotaped depositions on screen. All I had was a flipchart with newsprint and three colored markers. I felt like I was in the final battle scene of Star Wars VI – the one between Darth Vader’s best-equipped storm troopers and the short, roundish, hairy Ewoks (that would be me).

After 25 years in the courtroom, however, I now know that a flipchart presentation can be just as good – and sometimes better – than a fancy electronically displayed trial graphic. Few lawyers understand this fact. There’s a common misperception that the more high-tech your trial technology, the better and more persuasive it will be. I’m not sure where this belief came from – perhaps from the general belief that bigger, faster, flashier, and more expensive is always better.

This myth is not only untrue, but it is also dangerous, especially for two extremes of lawyers. The first are lawyers with unlimited budgets. Such attorneys sometimes think that they can rely on technology to cover their lack of preparation. The second kind are lawyers who, conversely, have no money to pay for expensive trial tools. These lawyers sometimes skip over the process of thinking graphically because they assume they cannot afford to create or present any material to the jury.

Both groups are wrong.

Expensive technology rarely covers for lack of preparation. If anything, it tends to make the lack of preparation even more obvious and, in the eyes of the jury, less excusable. Likewise, avoiding trial graphics and demonstratives altogether (because you think you cannot afford the necessary technology) ignores the fact that some of the most effective trial techniques require nothing more than an old-fashioned blackboard.

Here’s a real-world example. We worked as part of the defense team in the rape case against basketball star Kobe Bryant. Before the charges were eventually dismissed, one of the most effective graphics we developed for the case was a sketch that Mr. Bryant’s lawyer might have drawn on a blackboard during opening statement. When attorneys draw on blackboards, they take on the demeanor of a teacher, which jurors find appealing. A blackboard presentation tends to capture jurors’ interest – after all, most people like to watch things being created.

Blackboards, like newsprint and dry erase boards, also allow attorneys to change or enhance their graphic on the spot, according to what the witness is saying. If a witness gets confused while on the stand, for instance, the attorney can quickly create a sketch to get both the witness and the jury back on track (e.g., “So you’re saying you saw the defendant turn left – which would be west – on 23rd Street, right?” or “This gets confusing, doesn’t it? Let’s make a quick timeline of which email messages came from whom on which date.”).

Despite what Marshall McLuhan once professed, the medium is not the message, at least not in the courtroom. Nor is the message the media. The message is what you show the jurors. It consists of two elements: the content that you want the jurors to remember and the format that best conveys that content.

The media is the “how.” It is simply a delivery system through which you channel your message. Of the two, the message is always more important than the media. It’s never a good idea to use a particular technology for your graphic just because you can. Put another way, “the media should never drive the message.”

Of course, keeping trial attorneys away from computerized graphics can be a lot like keeping teen-agers away from Instant Messaging. You can already hear the choruses of, “But everybody’s doing it!” The easiest way to avoid making decisions based on this reasoning is to follow a basic, three-step, unidirectional process for creating demonstrative material.

To recap, this is a unidirectional process. Following these steps will help you resist the urge to use a particular technology just because your firm invested in it or because the winning attorney at your last trial had the bigger trial graphic toys. A crummy graphic does not get better by displaying it using expensive technology – it just becomes a more expensive crummy graphic.

How do you decide which technology is right for your case? I generally consider four variables. First, I consider case-specific requirements, which include factors such as the number of documents needed at trial, the number of exhibits, the case budget, the courtroom limitations (Does it have a screen? Is there room for exhibit boards?), and the judge’s preferences or limitations (e.g., Can lawyers move around the courtroom? Or does the judge insist that lawyers stay at the podium?).

The second consideration is the impression you want to make with the jury. Remember, some kinds of graphics are more effective when it looks like the lawyer (or witness) spontaneously creates them on the spot. These graphics carry a certain sense of immediacy that does not exist in a prepared package.

The third criterion is quantity: i.e., how many of the graphics need to be displayed at any one time. Certain graphics naturally complement each other, particularly if they are shown simultaneously. For example, I often recommend that a lawyer point to a timeline on a board while a document related to that timeline is simultaneously displayed electronically.

The final consideration is the personal preference and style of the trial lawyer. A traditionalist may be most comfortable (and effective) using a blackboard or dry erase board; a tech-savvy lawyer may be perfectly at ease navigating an Adobe Flash platform loaded with blow-ups and animations. What matters is that the chosen medium be a good match for that particular attorney.

Flash technology, by the way, is probably the single most revolutionary high-tech tool used in courtrooms today. (For the uninitiated, Flash is the technology that lets computer-users maneuver and interact with a Web page, click on a link to reach another page, pull down a menu, display a document, or launch a video.) Increasingly, attorneys are turning to Flash presentations to explain evidence to jurors, particularly when handling complex cases.

Let me offer you a real-life example of how Flash was effectively used to make what otherwise might have been an overly complex set of facts easier to understand. The matter in dispute centered on several thousand homes that were constructed using defective siding. In order to make the case simpler, the lawyer had us create a central platform using Flash technology from which he could make his opening statement, direct his testimony, and then argue at closing. This included a virtual 3-D “typical home” that could be rotated 360 degrees. Located on this home were about 20 “hot spots” which, when clicked, opened a menu of related material, including primary source documents and other illustrative graphics. The lawyer who used this technology eventually won over $400 million for his client.

One of the best things about Flash – besides being technologically cool –¬ is that it forces lawyers to think hard about what’s important in the case and what’s not. For a Flash presentation to work effectively, an attorney has to sit down and figure out how to structure the information and link content so that it makes sense. During a trial, Flash also offers the attorney more flexibility in presenting a case to jurors than the more widely used PowerPoint presentation. PowerPoint locks an attorney into rolling out his case in a fixed, linear fashion: slide 1, followed by slide 2, and so on. By contrast, an attorney using Flash can present his visual argument in any order he chooses and even skip over points that, in the heat of battle, seem less compelling.

We once had a client who insisted that every demonstrative be printed as an exhibit board. At trial, he ended up with about 60 different boards. Not only is this approach boring, but it also dilutes your message. When you show a jury a graphic on a board (or a PowerPoint slide or an animation), you want them to instinctively understand that you are about to make an important point. You want them to sit up and pay attention. If you overuse a medium by putting everything on boards, the jurors are likely to think, “Oh no, here comes another boring board” rather than “Hey, this is must be important.”

To keep the jurors interested – and to be sure you are using the right technology for the right point – mix up your choice of media. Display some of your graphics electronically, write some on a blackboard or flipchart, and put some on exhibit boards. When done properly, this approach not only keeps things interesting, but it also encourages you to be more creative in the way you explain key facts.

Of course, you should not mix your media just for the sake of mixing. Choose the technology that best fits your presentation needs at the appropriate point in the trial.

It’s amazing how even the simplest presentations can go awry if you do not practice before trial. In one case in which we were involved, opposing counsel used an overhead projector, but had apparently given very little forethought into how his presentation would work. He had a colleague run the equipment while he delivered his closing argument, but he neglected to coordinate his presentation with the images being projected. As a result, while the lawyer talked about one topic, the assistant displayed something completely different.

The low point of the attorney’s presentation occurred when he forgot that the overhead projector could display only transparent acetate versions of the document. He handed his assistant a paper copy and insisted she put the image on the screen. The assistant knew that the image on the paper would not appear on the display screen, but was so flustered by the lawyer’s insistence that she laid the paper on the overhead projector anyway. Of course, the result was a completely blank screen.

This would give most lawyers pause – but not this attorney. Even though the screen was blank, he repeatedly pointed to it and described the document as if there were an image that the jury could see. Finally, the stalwart assistant decided she had to do something, so she bravely took the document, and, holding it in front of her, charged up to the jury box and stuck the paper within inches of the jurors’ noses. This prompted the judge to interrupt the closing and order the assistant to back away from the jury box. The end result was a total disaster – the bumbling lawyer’s client went on to lose more than $200 million.

If this can happen with an overhead projector, imagine what can happen with a more high-tech presentation. That’s why practice is so important. A good presentation needs to run smoothly without any glitches so that the jurors can stay focused on your message, not your technology.

In the end, the trial lawyer’s job is to persuade. Technology can help, but it can never replace the critical process of uncovering the key points of a case and then carefully structuring – and communicating – these points in a way that convinces the jury. One of the worst things that can happen is for your jurors to be more focused on the technology you’re using (and the way that you twist, turn, and shorten your evidence to fit that technology) than on who you are, who your client is, and what your case is really about.

Technology should be tailored to your case rather than being a one-size-fits-all solution to your communication needs. In the end, technology should fit the facts like a real custom-made suit.

is in charge of Visual Trial Strategies at The Focal Point LLC, in Oakland, CA, which specializes in trial graphics and strategy. He is a former trial lawyer and law school professor who consults on high profile cases throughout the country. He is the author of Creating Winning Trial Strategies and Graphics, American Bar Association, 2004. His new book, Powerful Deliberations: Putting It All Together for the Jury, is now available from the ABA. Chris can be reached at chris@thefocalpoint.com.

The original article can be found here: NextGen_Law.com, pages 14-20.