Graphics in Pre-Trial Motions & Hearings: An Early Advantage – Part I

Graphics aren’t just for juries. While it’s tempting to make your graphics an afterthought to your fleshed-out case themes and talking points, waiting until trial is in sight means you may have already missed multiple early opportunities to use graphics to influence the terms and development of the case – or even stave off the trial itself.

Remember, graphics can help you with the other key part of your audience: the judge.

In addition to the other practical benefits of getting an early start on your graphics, many of our clients have found that having tight, professional graphics to show the judge in pre-trial hearings carries substantial persuasive weight.  In fact, arguing the merits of your case to the judge in pre-trial hearings is a whole lot like dealing with a jury, only 1/12 the size.

Given that judges are experts in the law – and, well, judgment – this may sound surprising.  Yet academic research tells us that judges are still subject to the same cognitive processes and biases as any juror. Therefore, the rules of clear and effective communication are very much in play. And, of course, some points are simply much easier to conceptualize in graphic form.

This two-part blog will first cover a few examples of graphics that can serve to explain your claims and tell your story to a judge in pre-trial hearings.  Part II will go on to discuss how one can successfully use graphics in technical, expert-driven hearings where there’s a heavy educational component, such as technical tutorials and Markman hearings.

Pre-Trial Graphics to Conceptualize Your Story

The usefulness of visual aids is nothing new.  Graphics can weave visually appealing, universal stories that words alone sometimes struggle to express completely.

Metaphors and analogies, quickly conjured by an image or animation, provide relatable context by which the viewer can make sense of the hard-to-conceptualize.  In pre-trial hearings, such graphics grease the gears of communication and reinforce the judge’s accurate understanding of your points.

While graphics are incredibly versatile, motions for summary judgment are a particularly apt place for such concise storytelling.  Consider the following examples.

Example #1

Our client utilized the graphics below (Fig. 1) in a successful defense motion for summary judgment to clearly illustrate for the judge the impractical demands made by the plaintiffs.

After owning land leased to oil companies for over a century, the plaintiffs had demanded the top 10 feet of soil be removed and replaced to clean up the contaminated land.  For wealthy oil companies, they argued, this should be no big deal.  The 3.84 million cubic yards of dirt to be removed was a significant amount, sure, but still just another number against all the income of “Big Oil.”

Our mission was to provide a series of images showing the judge exactly what the plaintiffs were asking our client to do.

It was here that providing a concrete image became critical.  That much dirt, it turns out, would fill about 768,000 dump trucks.  These trucks, lined up bumper-to-bumper, would reach far out of the state and, in fact, the entire U.S. – all the way to Goose Bay, Labrador, Canada!  And at least that many trucks would then be required to bring new dirt back to refill the hole.  Local residents, of course, would have courtside seats to the whole experience: 100 trucks a day, 24 hours a day, for 42 years.

The images we crafted served to call out these stark realities in an easily digestible way.

Figure 1: Dirt Removal

In this case, our main challenge was the difficulty most people have conceptualizing large numbers.  By presenting these numbers as relatable images, our client was able to powerfully and succinctly demonstrate to the judge the unrealistic nature of the plaintiffs’ demands.  Furthermore, these slides allowed us to highlight the information we wanted the judge to prioritize; in essence, to guide the judge through our story.  [More tips on information hierarchy here.]

Example #2

This second set of graphics (Fig. 2) was used in a case where the plaintiff claimed that, but for our client, it would have gotten the “green light” from the SEC to go public.  The plaintiff argued that it missed its window of opportunity because our client, an accounting firm, hindered its ability to file with the SEC in a timely manner; instead, it was forced to file for bankruptcy.

But the reality, our client argued, was not so black and white — a point we helped demonstrate to the judge with these graphics:

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Figure 2: Going Public Is an Uphill Struggle

These images compare the plaintiff’s view of its progress with the actual obstacles it faced in its arduous climb toward the reward of a public offering (most of which had nothing to do with our client).  We used the “pot of gold” iconography here because it is a simple concept that resonates with judges and juries alike: one small icon neatly demonstrated the shining temptation of going public, thus providing a plausible reason for the opponent’s eagerness to overlook the multitude of additional steps required to do so.

Example #3

We designed the following graphic (Fig. 3) to help explain to the judge why our client was entitled to summary judgment of no causation in a product liability case.  The plaintiff had developed a multi-step theory to establish their claim that our client’s product had caused the tragedy in question.

Because each step had to be proven true for the theory to hold, we laid out that very same theory in a way that promptly displayed its pitfalls:

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Figure 3: A Poorly-Built Bridge

The bridge analogy was particularly appropriate for our argument.  We could show that if any one of the support beams is missing, the bridge – the theory – collapses. With the “bridge of causation” collapsed, the plaintiff could not connect the tragedy with our client’s product.

Such analogies and metaphors work as shortcuts for judges, helping them to visualize and subsequently understand your arguments.

While the above examples happen to come from the summary judgment context, it isn’t difficult to imagine how similar visuals could assist the court in “seeing” your point of view in a number of other significant pre-trial settings, such as:

  • Motions to dismiss
  • Motions for preliminary injunction
  • Motions to exclude evidence
  • Motions to exclude certain types of compensatory damages
  • Motions to add or dismiss a claim for punitive damages
  • Daubert/Frye motions
  • Markman hearings
  • Technical tutorials
  • Mediations and settlement conferences

Part II continues with a discussion of how graphics can be used to teach and compare in more technical/educational pre-trial scenarios, such as a Markman hearing.

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By:  Adam Bloomberg, Managing Director – Visual Communications


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