The Medium Is Not the Message
One of my law professors used to say that at their very core successful trial lawyers are teachers and storytellers. In the courtroom they often have to simplify complex legal and technical issues so that people with little prior knowledge of the case (the judge and jury) will be able to understand the legal issues and arguments being made. They also have to be able to tell the story of the case in terms that are compelling to the jury.
This professor’s lesson is more important to keep in mind now than ever before. As the variety of presentation materials allowed in the courtroom grows to include more and more high-tech tools, the more tempting it is for lawyers to choose the tool for their presentations before thoroughly contemplating their case themes. Yet letting the medium drive the message is not a recipe for making a powerful—and winning—case.
Whether you’re using the latest technology or a traditional presentation tool like a flipchart, it is critical to your case that you think through the story you are trying to tell in order to determine the most appropriate medium. If you don’t, you’ll end up with a really expensive bad story that won’t convince a judge or jury that the facts are on your side.
Presentation materials have long enhanced the effectiveness of teaching and storytelling, both inside the courtroom and out. New technologies, such as computer graphics and models, video presentations, and 3-D animations, have only increased the range of tools available to create a powerful presentation. The primary benefit of these technologies—from Flash to 3-D animation to an old-fashioned blackboard—is that they empower attorneys to tell a complicated story in a way that is easier to follow, more engaging and more compelling than ever before. Judges are recognizing these benefits and are increasingly allowing technology in the courtroom.
Flash is one new technology that is increasingly being used to manage complex presentations. Flash is a computer animation and interactivity software tool that is generally used in Web-based applications. This technology is what allows users to direct how they want to view information on any particular page in any particular order. Flash is so powerful because it offers a graphic way to organize your presentation and navigate through it in a logical manner. It also offers an inexpensive way to create two dimensional (2-D) animation. Lawyers and their trial teams are successfully relying on Flash to organize their cases, display trial graphics, create effective animations, educate judges, and persuade jurors.
However, just having a new high-tech tool like Flash isn’t enough to guarantee a good presentation any more than owning a Fender Stratocaster will make you sound like Jimi Hendrix. When you go through the detailed process of structuring your Flash-based presentation, you have to figure out what’s important and how key topics connect with one another. You have to ask yourself, “is something really important or is it not worth including in the presentation.” This forces you to go back and think through the case, analyze it, and structure your argument in a concise and persuasive manner. When done properly, this process results in a more effective presentation and a more unified way of telling your story.
For instance, if a complex timeline is essential to the story that you are telling, Flash may be the best fit because it allows you to build a calendar and click on specific dates using a menu that shows what events took place on which date. Flash can serve as a platform from which to lead your target audience (the judge and jurors) to primary and secondary sources such as charts, graphs and videotaped testimonies.
For one client, International Paper, we used Flash to create a 3-D version of a two-story house that a lawyer or expert witness could rotate 360 degrees during arguments and testimony. We placed “hot spots” on the house that corresponded to specific locations about which the lawyer would argue and witnesses would testify. The lawyer or witness could rotate the house, find the relevant hot spot, and click on it to bring up an index of exhibits and trial graphics. From this index page, the user could access additional information, making it easy for the jurors to follow.
So for example, if the lawyer wanted to talk about window construction, he could rotate the building until he arrived at the appropriate view of the house that emphasized windows, click on the hot spot dealing with this topic, and he not only had access to all of the documents and graphics necessary to supplement his argument, but was also able to display material in any order or degree of detail. This allowed him to pull up photographs, charts, video-taped deposition, anything he needed by clicking on each hot spot.
The presentation helped International Paper win almost $500 million in damages. Using Flash provided the organizational platform that enabled the lawyer to tell a clear and coherent story in a way that engaged the judge and jury and helped them understand the key points. But it wouldn’t have been effective had the thought and analysis of the case not happened before constructing the graphic.
Another form of high technology that is emerging as a powerful tool in the courtroom is the computer-generated model. Accurate digital models enable lawyers to show complex images of large and small objects, from a bridge to a mitochondrion. Models can be very powerful tools to illustrate a complicated or difficult-to-envision story because they can be shown at various levels and perspectives, and can be, taken apart and put back together, in a way that keeps jurors engaged. They can also be very expensive to create, but the expense could be well worth it if it is the best way to communicate your point.
Yet with all of the bells and whistles that Flash and other new technologies offer, it’s critical to remember that the message is always more important than the medium. That’s why you should always start by honing your client’s message and storyline and then let the choice of technology follow. Choosing the wrong media can actually compromise your message. Consequently, you need to consider a broad range of technologies and, when appropriate, never be afraid to mix your media tools.
High-tech tools are not always the most effective ways to present your case. As an example, look at the Kobe Bryant case. The NBA star’s legal team in his 2003 sexual assault trial had the financial resources to use nearly any form of presentation for their case, but we determined that some of the most effective forms to make Bryant’s case (which the prosecution ultimately dismissed) would be decidedly low-tech.
One important argument that the defense team needed to illustrate had to do with the location of Kobe Bryant’s room relative to the room occupied by his bodyguards. Specifically, we needed to show that the complaining victim (who assigned the hotel rooms) placed Kobe Bryant’s bodyguards on the other end of the hotel as far away from Kobe’s own room as possible, even though there was a room available next door. We determined the best way to make this point was to have the defense attorney stand up and draw it for the jury using a blackboard and chalk. This approach had the benefit of appearing spontaneous and easy-to-demonstrate even though it had been very well-rehearsed. And the drawing on the chalkboard could be left in place as a constant reminder for the jury while the attorney argued her point or questioned a witness.
In this same case, we also needed to show that the route the accuser took from the lobby to Kobe Bryant’s room was very long and circuitous—not the direct and easy route that would have been the obvious way to walk to his room. To make this point, we hooked up a video camera to someone and had them walk both the direct route and the long, circuitous route the accuser took to his room. This was effective because it demonstrated, in real time, not only how much longer the route she took was than the direct route, but that the accuser went out of her way to secretly go to his room. These examples both demonstrate that it is important to think through your case and deliberately choose the media that will enhance your argument. Mixing media, as was done in this case, can serve to underscore the various points you are trying to make.
Another type of model is a physical representation, which illustrates your story in a symbolic way. For example, you could build a very complex technological model to show what is inside and outside a patent. But it may be just as effective (not to mention less costly), if not more so, to use a simple shopping bag that represents the patent. You can show the jury that there are certain items in the bag that constitute the patent. Then you can add additional items into the bag, showing what another company has done. But because the bag still contains the first items that made up the first patent, then whatever else you put in doesn’t matter. The first, patented contents are still there. Adding more items to the bag still infringes the patent. This illustrates a real, physical way to communicate a concept to a jury that is persuasive and engaging. And while it’s about as low-tech as one can get, it still requires thoughtfulness, creativity and thinking outside the box.
The important thing to remember, given the growing number of technologies available, is to be aware of the options available to you. Which brings me back to my main point. For lawyers to make the best use of the technologies available to them, they need to first take a very thorough, thoughtful look at their case and create a coherent and compelling story. Only then can you really determine which mix of technologies will be the best fit for the arguments you are making.
This article appeared in the New Jersey Law Journal on January 29, 2007.
Appeared in New Jersey Law Journal
January 29, 2007