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Two things all attorneys recognize about demonstrative evidence: It’s potent and it’s expensive. One great way to maximize the bang and minimize the bucks associated with courtroom graphics is to kick off the visual development process with a brainstorming session. Effective brainstorming requires far more than getting the trial team together to swap ideas. In fact, even brainstorming sessions with just one attorney are valuable. That’s because brainstorming is about adopting a particular method of analyzing a case, a method that helps the trial lawyer think clearly, capture those thoughts, and act on them. One brainstorming method asks the trial lawyer to analyze his or her case on an issue-by-issue basis. Rather than trying to swallow the case whole, attorneys should deal with it in manageable chunks. Brainstorming can also help in developing effective visuals. First, the brainstorming session will identify the most important ideas to attack with visuals, and ensure that the trial team has graphics that address all critical case issues. Moreover, the brainstorming work product makes it easy to communicate with artists about the purpose of each visual and to test the effectiveness of the designs they develop. Brainstorming helps to control the cost of courtroom graphics. During the brainstorming session, the trial lawyer can estimate the costs associated with his or her visual ideas and make informed trade-offs to keep demonstrative evidence expenses under control. The brainstorming process also reduces demonstrative evidence costs by minimizing the number of visuals one begins but never completes, or completes but doesn’t end up using in court. Schedule a demonstrative-evidence brainstorming session at least three months before trial. Plan to focus exclusively on courtroom graphics. Depending on the complexity of the case, set aside anywhere from three hours to a full day for the session. Make sure senior members of the trial team are available to attend and understand that they are to be primary contributors. If the firm has hired outside graphic consultants to assist in the design and production process, invite them to attend also. IDEAS FIRST, DRAWINGS LATER Let all attendees know that they’ll be expected to check their paintbrushes at the door. The goal of this skull session is to develop a detailed list of the most important demonstrative-evidence ideas, not to design the visuals that will communicate these ideas. Keeping idea definition separate from design development yields better ideas, better designs and reduced costs. Assign one attendee the role of scribe, to capture the results of the proceedings using a computer with an LCD projector attached. Projecting the work product onto a large screen makes it easy for everyone participating to see the list of ideas being discussed and for the scribe to make revisions. Set up a demonstrative-evidence worksheet that the scribe will use to organize the thinking developed during the session. A demonstrative evidence worksheet is a table composed of rows and columns that one can create using word-processing or database software. Each row represents a single demonstrative evidence idea. And the columns are used to capture critical information about each idea. For example, most lawyers will want to use the following columns: title, type, issue(s), mission statement, for use by, data source, estimated cost, key and production status. Develop an outline of the issues in the case before the brainstorming session. As the brainstorming continues, one can use this outline to ensure that the team is developing visual ideas for all case issues. Circulate a memo laying out the objectives, agenda and ground rules for the brainstorming session. Include the issue outline as an attachment. THE PROCESS Begin the session by reviewing the agenda and making sure all attendees understand the ground rules. There are three phases in the meeting: developing ideas, fleshing out the details behind each and evaluating the ideas to determine which will make the cut. The first phase of the brainstorming process is to create an exhaustive list of demonstrative-evidence ideas. At this stage, all ideas are great ideas. Don’t worry — the chance to cut out ineffective ideas will come soon enough. During the months of working up a case, trial team members have no doubt built up a mental list of favorite demonstrative-evidence ideas. Offer each attendee a chance to contribute. Give each idea a working title and have the scribe enter it in the worksheet. In the worksheet’s type column, list the team’s expectation regarding the medium that will be used for each visual: blow-up, chart, model, animation, video and so forth. Once everyone has had a chance to express ideas, break out the issue outline the team prepared in advance of the meeting. Work through it issue by issue, and develop additional ideas that would help communicate the client’s position on each issue. For each idea, create a working title and an indication of the type of visual the team expects it to be. After generating a list of graphic ideas, add critical details about each. Use the issue(s) column in the worksheet to capture the name of the issue or issues for which each visual will help the client prevail at trial. Once that is done, tally the number of visuals planned for each case issue. The team may discover that some issues have a multitude of graphics and others have too few. If this is the case, take corrective action. DEFINE MISSION STATEMENTS Mission statements play an important role in the process of designing the actual visuals. They keep artists focused on the communication goal of each visual. And they provide a benchmark by which to judge the success of the artists’ design efforts. One caveat: The mission statement should define what the team wants to communicate, not how it should be visualized. In the mission statement column, create a description of the intended impact of each visual — what the trier of fact should think after seeing it. Make explicit the inference the team wants jurors to draw from the visual evidence. If the team finds itself struggling to define the mission of the visual, kill the idea. In the “for-use-by” column of the worksheet, identify the witness or other trial segment with which each visual is to be used. When uncertain, enter a question mark. When trying to decide between a number of candidates, list their names followed by question marks. In the data source column, name the piece(s) of evidence on which each visual will be based. Sometimes the source is obvious. For example, the source for the blow-up of the Smith memo is the Smith memo. Many times, however, the source of the data is unclear. For example, suppose the trial team is working up an antitrust case and wants a visual showing the defendant’s market share over time. Where is this data coming from? Don’t let the artists start designing a visual before the team has in hand the data that underpins it. One of the advantages of employing a demonstrative-evidence consulting firm is the different perspective artists bring to the design process. One can improve the results of a brainstorming session if the artists attend from the onset of planning the visuals. Using this brainstorming method will help to educate, organize and focus the graphic artists. And their professional feedback during the session will help the attorneys decide what types of visuals to use. The entire trial team will be working under the same set of goals and expectations as to what demonstrative evidence should be produced. STEP BACK AND THINK Once the list of demonstrative-evidence ideas is fleshed out, the team is ready to step back and assess the merits of the ideas. Evaluate the absolute value of each idea, as well as its value relative to its likely costs and relative to the potential impact of other competing ideas. Based on input from the graphics consultants or based on prior experience developing courtroom graphics, estimate the cost of each visual. Discuss the relative merits of each visual, taking the all-important cost estimate into consideration. Use the key column in the worksheet to flag the most important ideas. If it later develops that the cost of the planned visuals is exceeding the trial budget, refer to this assessment to determine which ideas to push overboard. Finally, identify the ideas that the artists can start to design. Also be sure to take the important ideas for which the worksheet is still missing data and assign members of the trial team to develop it. Update the production status column of the worksheet. As the planned visuals proceed through the production process, the trial team can track progress by moving each idea along the following continuum of possible values: unapproved idea, approved ideas (awaiting data), being designed, design approved, in production and produced. After the brainstorming session, have the individual who acted as scribe distribute copies of the demonstrative-evidence worksheet the session produced. Soon enough, the trial lawyer who has undergone this process will be the proud owner of a winning set of courtroom graphics. Investing a few hours in a demonstrative-evidence brainstorming session will have paid handsome returns. Greg Krehel, who has more than 18 years of trial consulting experience, is chief executive officer of DecisionQuest’s CaseSoft division in Ponte Vedra Beach, Fla. CaseSoft (at www.casesoft.com) is the developer of litigation software tools, including CaseMap, TimeMap and NoteMap.

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