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Deposition Designation Station
 
August 2003

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Constance Bernstein

By: Constance Bernstein

The Synchronics Group

19 Divisadero Street, San Francisco, CA 94117
Tel: 415-626-2210
Fax: 415.626.6527
Email: cbern@synchronicsgroup.com
Websites: www.SynchronicsGroup.com

Listing on Experts.com

The law loves the word, but people love pictures. Integrating words and pictures in your presentations is key to a litigator's success - whether addressing the judge, jurors, arbitrators or mediators.

One of the tests of a litigator's professionalism is the way you design - and present - exhibits. A professional litigator knows how to present exhibits so they pack a punch, instead of die on the vine. Exhibits can build tension in your story and add drama to your presentation - but too often, they are anti-climatic. Instead of hitting your point home, the point gets lost in the telling of it.

This article will discuss three major mistakes that attorneys often make - mistakes which can make the difference between winning your case and losing it.

Mistake Number One: Illustrating the Facts Instead of Telling the Story
Mistake Number Two: Designing Visuals Which Are Self-Explanatory
Mistake Number Three: Anticipating the Punch Line

Mistake Number One: Illustrating the Facts Instead of Telling the Story

Not long ago, defense counsel asked me to develop an exhibit of a factory floor for a wrongful termination case. He claimed that plaintiff was responsible for causing a fire and wanted an exhibit to illustrate where the fire took place. But upon further reflection, we discovered that the point he needed to emphasize was not where the fire took place, but that it was caused by plaintiff's poor judgment. And upon further discussion, we discovered that the fire was just one of a series of poor judgments the plaintiff had made. So we developed a time line instead, documenting a series of events which illustrated this man's overall incompetence on the job. A diagram of the factory floor might have been useful, but not essential to the jurors' understanding of the case. Whereas the time line, which told the story of the case, was crucial evidence.

I use this simple example to dramatize an important point: Too often attorneys go into a presentation with nonessential exhibits which demonstrate the facts, instead of essential exhibits which tell the story.

The Problem of Minutia-itis
Identifying the important issues which advance your story is the most difficult part of putting together a visual presentation. After you have been working on a case for months - sometimes years - you are bound to lose perspective; every little detail becomes magnified in importance. The more involved you are in the details, the more exciting they become.

This condition is known as minutia-itis, and it happens to everybody. You know you have this disease when you find yourself saying to a colleague after a deposition of the other side's expert: "Hah! Did you see Doctor X squirm when I asked him about the secondary side effects on turtles of hecktor-skektor poly-pie-skemia? And the answer he gave, that they are abba-babba-dabba, influenced by the neo-largo-rhythms in the metatarsal of the fourth pad? No juror will ever believe that!"

No juror will ever understand that!

How to Avoid Minutia-itis and Find The Key Elements
The technique for finding the key elements which tell your story is to ask yourself the question: "What does the arbitrator, the judge or the jurors have to know in order to give me the verdict." No case should have more than 5 key elements - no matter how long the trial might be.

Once you have identified the key elements of your story, you have established the outline for your Visual Trial. Each important issue needs to be visually described, so that one exhibit tells the story of that issue. Then you need to substantiate the story with other exhibits illustrating the specific facts. These additional exhibits can be blow-ups of your documents. Without the big exhibit illustrating the story, however, the specific facts get lost.

Mistake Number Two: Designing Visuals Which Are Self-Explanatory

When designing your exhibits - whether using low tech boards or high tech computer projected graphs and animations - the golden rule is to design exhibits which enhance you, not replace you. Translated, this means that you will never want to show an exhibit which is self-explanatory!

One of the most serious mistakes attorneys make in designing visuals is putting too much information on them, so that they need no one to interpret them. While the jurors read through your exhibit, you might as well (choose one): 1) Prepare your closing argument, 2) read the newspaper, 3) go out for a cup of coffee.

Rather than put yourself on the sideline in your presentation, design exhibits which put you in the middle. Leave out nonessential descriptive data which you can easily fill in verbally. Hit your audience over the head with a smashing picture, which only comes to life with your explanation of it. Establish yourself as the authority figure who holds the key to your audience's understanding of the exhibit - and the case.

When designed correctly, your exhibits can establish your leadership and authority in the presentation arena. When poorly conceived and developed, your visuals can confuse your audience and make you look ill prepared and incompetent.

Mistake Number Three: Anticipating the Punch Line

One of the most serious mistakes attorneys make in presenting exhibits is anticipating the punch line - jumping the gun - giving the ending away. Showing an exhibit is like telling a joke; timing is key to making it work.

The technique for showing an exhibit correctly is to lead into it, not away from it. You want to talk about the exhibit before you show it - creating interest, building up to its central point, but not giving the point away. When you reveal the exhibit, then your audience finds out what the point is. The visual should tell the story, not you.

Never make your point and then reveal it on the exhibit. Never! Otherwise, you lose the drama and excitement that the picture offers.

An Example of How To Lead Into an Exhibit

For example, you represent the defense - a telephone company - who plaintiff maintains was responsible for his company going broke because call-in customers, upon whom the business depended, kept getting disconnected. Your point is that the disconnects accounted for only .02% of all the calls, hardly enough to cause a company's failure.

In the visual we developed for the case, black phones represented all the calls that got through; white phones were the disconnects.

To show the exhibit correctly:

  • Put the exhibit on an easel, facing backward so your audience cannot see it
  • Begin to talk about the issue, i.e., that plaintiff claims the telephone company was the cause of his company's failure because of the disconnects
  • Build up the tension by asking the rhetorical question: "But exactly how many disconnects are we talking about here? Let me show you on this exhibit. Now the completed calls are..."
  • Go to the exhibit, turn it over and reveal it to your audience. Continue your sentence: "...in black and the disconnects are in white..."
  • Keep quiet while the jurors look at the exhibit and digest it. After you are sure everyone has had a chance to study the exhibit, you will want to sum up - for clarification - what the jurors have seen:
  • "Can you see the two white disconnects? Upon investigation, we have found that out of every 1,000 calls to Yellowphone, only 2 were disconnects - only two-tenths of one percent. Ninety-nine-point-eight percent of the calls to Yellowphone were completed. And yet, plaintiff would have you believe that those few disconnects caused his company's failure."
  • Continue talking about the exhibit until you feel confident that the message has been communicated. It is an important message. One of the main points of your case. You have developed a separate exhibit to specifically tell that story. Make sure you tell it loud and clear.
  • Your visuals should entertain as well as educate. Exhibits which are well designed and rehearsed in their delivery are like exclamation points in your presentation, adding an element of suspense, surprise and drama.

Summary

Remember three points as you put together your exhibits:

  • Illustrate the Story, Not Simply the Facts
  • Design Visuals Which Need You to Interpret Them
  • Let the Visual Make the Point, Not You

By developing these simple skills, you will enhance your presentation many times over-creating interest, building drama, communicating your message persuasively and helping win your case.

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Constance Bernstein and The Synchronics Group have been working with attorneys in the courtroom since 1981. We are one of the oldest trial consulting firms in the country, pioneering the use of scientific and academic principles which have become essential components in today's complex litigation. The Synchronics Group has developed a special expertise in presenting complex cases to jurors and offers a sophisticated graphics department to visually reinforce case strategy.

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