Expert witnesses can be crucial in trials involving highly technical topics, such as banking, technology, engineering, medicine or insurance. Working with your expert to create trial graphics to simplify and illuminate these technical topics is also crucial; without them, even the most attentive jury members may get confused and stop paying attention.
Common Misconceptions about Graphics
Before outlining the art of economical expert witness graphics, it is important to dispel any prevailing “myths” about trial graphics in general, because these myths truly get in the way of getting the most out of your demonstratives.
Myth 1: Trial graphics are just pretty pictures.
It is true that trial graphics can be incredibly appealing. But the value of trial graphics does not just lie in their use, as end products, in the courtroom. Instead, the process of conceptualizing and creating the graphics forces attorneys to sort through their evidence, refine their ideas, and learn to think visually. This is particularly crucial for many experts who need to be reminded to simplify. Having a clear graphic also enables both the attorney and expert to be better teachers and advocates for their clients — as well as connect with jurors who absorb information visually more easily than aurally.
Myth 2: The more money, the better the graphic.
Spending more money may allow you to hire a more expensive trial graphic designer or use more complicated media (a 3-D animation, for instance, rather than a cross section mounted on foam board). But that does not mean that you have put in the time necessary to refine your ideas and come up with the best graphics idea for your jurors. Nor does it mean that you have chosen the media best suited for your case. In some instances, a well-thought-out series of diagrams drawn on a white board can be far more persuasive than something that seems more sophisticated.
As a corollary of this myth, by the way, lawyers sometimes think that if they do not have a big budget, they cannot afford to convey complex ideas visually. This, too, is a mistake. Eye-catching and effective graphics can be made even on a small budget. Remember, some of the best graphics are hand drawings.
Myth 3: The medium is the message, or vice versa.
Many lawyers get the terms “message,” “media” and “design” mixed up, but it is important to keep them straight because these words come up a lot in the process of planning trial graphics.
The message is the “what”; it is the content, the substance you want to communicate to the audience; it is what you want the judge and/or jury to “take away” and use as they decide a matter. The design is the “layout” of the message. It is how you structure a graphic (usually by a process of elimination) to get the viewer to focus on what really matters. The media is the “how” or the delivery system that you use to convey the message to the audience. It is sometimes described as the “technology.”
Correcting for these mistakes requires that you more fully understand the laws that govern the interrelationship of message, design and media, as follows:
Law 1: The media should never drive the message. It is not wise to say to your witness, “Let’s do an animation; here’s what we want it to prove.” The better process is to start with the message (“those bolts were defective from day one”) and then decide which media will best convey it. To do otherwise forces you to limit your adversarial effectiveness.
Law 2: Design requires a balance between scarce trial resources. In the courtroom, those resources are time and space. Take the time and devote the space only to those things that really matter. If your witness needs to explain just how the defective bolts made the engine seize, use your graphics to zoom in on that malfunction, not the history of bolts since 1787.
Characteristics of Persuasive Adversarial Graphics
Like all trial graphics, highly persuasive expert witness graphics share five characteristics in common.
1. They use everyday, real-world language or concepts.
That does not mean that you need to dumb down your graphics for either the judge or jurors. Rather, it means you need to make your graphics readily understandable. If your graphic about defective bolts is incomprehensible, your audience will tune out the witness and her demonstratives — and unfortunately, “a closed mind cannot be persuaded.” Above all, avoid triggering what I call the “Yikes Alarm,” which occurs when jurors suddenly decide the information being presented is too hard to understand and either stop listening to you, or worse, start resenting you.
2. They relate new material to something familiar.
Learning cannot take place in the abstract. People need familiar concepts and images — what we call conceptual “toe-holds” — to get a leg up on new material. Perhaps the defective bolt can be explained with the “square peg in a round hole” analogy. Or perhaps it’s a “straw that broke the camel’s back” situation. Whatever you need to explain, using analogies, folktales, idioms and clichés helps your audience put new material into familiar patterns.
3. They are memorable.
A boring graphic will neither enliven nor illuminate a boring witness’s testimony. It will just further confuse your jurors. The ideal graphic provides information in a way that jurors remember long after it is presented.
4. They create a buzz.
A “buzz” is the opposite of the “Yikes Alarm.” When a graphic creates a buzz, your jurors lean forward, look intrigued and have a visible “Oh I get it” look on their faces. They might even give an “aha” chuckle.
5. They involve pacing devices.
Sometimes lawyers and expert witnesses give too much information too soon. A better approach is to provide the information a little at a time, creating a foundation of understanding for the jurors and then layering more details on top of it.
Working with Expert Witness Graphics
Gary Larson once created a cartoon that applies perfectly to expert testimony before jurors. The first frame shows a man lecturing his dog. “OK Ginger, I’ve had it!” the man says. “Stay out of the garbage! Understand, Ginger? Stay out of the garbage or else!” The second frame shows what the dog hears: “blah blah Ginger blah blah blah Ginger blah blah blah …”
When you’re working with expert witnesses, you want the jury to hear more “Gingers” than “blah-blahs.” How do you do that? Here are nine rules to maximize the impact of your Gingers.
1. Tell your jurors what your expert did to prepare, what she found out, and why it matters. This could be as simple as: “Ms. Mellor developed a computer model to estimate how many times the fan would have to rotate before the bolt broke. She discovered the fan only had to turn 500,000 times to create that much stress. And ladies and gentlemen, when you’re talking about a jet engine, 500,000 is not very long.”
2. Make sure that explanations of what your expert did make sense and seem fair.
3. Help your expert explain technical terms — by rehearsing her testimony in front of paralegals or administrative professionals from your office, for example.
4. Give your expert “toys,” such as models.
5. Keep your expert focused on what matters. This is not always easy — experts, after all, know far more about a topic than what they present in court.
6. Encourage your expert to get up out of her chair and walk over to demonstratives so she can take more of a teacher role and less of a lecturer role.
7. Explain to your jurors why they should favor your expert’s conclusion rather than that of your opponent’s expert.
8. Avoid “chart junk” — or throwing too much information onto a graphic — which just makes it hard to understand.
9. Convert numbers into pictures, to make them more readily comprehensible.
Above all, don’t let your expert witness waste the jurors’ time or patience. Use your trial graphics to simplify complex testimony, not tangle it in further details. •