This blog post is the first of a series that will focus on the fundamentals of trial graphics. Its content is based on a program Adam Bloomberg, Litigation Insights’ Managing Director for Visual Communications, will co-present with Bryant Spann, Partner at Thomas Combs & Spann PLLC, at the 2014 Midyear Meeting of the International Association of Defense Counsel in Carlsbad, California.
Typically, trial graphics are developed late in the pre-trial process. This is understandable: Developing graphics can be expensive, and clients are loathe to sink limited, budgeted resources into preparing trial graphics in a case they believe will settle. Yet certain cases either are not candidates for settlement or, as in serial litigation or mass torts, present trial themes that are certain to recur. In these situations, counsel should lobby their clients to invest in developing trial graphics as far in advance of trial as practicable. Doing so can pay big dividends.
Rallying around Themes for Trial. Developing graphics imposes discipline on the trial team – both lawyers and client – by forcing them to focus on trial themes. Trying to put together an image that sharply and concisely communicates and reinforces your trial themes requires you to know what they are. Ideally, making these choices early in litigation can help all team members pull on the same side of the rope and avoid the unpleasant “Why are we arguing that?” conversation with your client on the eve of trial.
Setting a Course for Discovery. Good trial graphics can be used as outlines for discovery, especially in recurring litigation. If you know what data you will need to build out your graphics in an individual case (e.g., dates the plaintiff used your product), you can focus more clearly on developing those data in discovery. Along the same lines, if multiple lawyers or law firms will be taking depositions around the country, preliminary trial graphics can serve as educational materials to ensure that attorneys and witnesses are focusing on information essential to the development of your themes and graphics. Such guidance can be especially important with experts; if you know what scientific failings you want to show to the jury, you can be sure to gather the necessary testimony and documents in discovery.
Testing Reactions from Mock Jurors. If you get the opportunity to test your case with a focus group or mock trial, always include graphics. If the goal of a mock trial is to test your vulnerabilities as well as your case themes, you should also spend some time developing graphics for opposing counsel. This balanced approach will allow mock jurors to weigh the arguments equally. Additionally, a mock trial allows you the time to rehearse your opening and closing presentation and provides a less stressful training ground for your experts to present their graphics in front of the jury.
Smoking Out Bad Arguments. All lawyers have had the experience of thinking they’ve identified a winning argument, only to have it fall apart when you say it out loud. It sounded good in your head, but it sounded insane (or mean, or too complicated) when you spoke the words. Developing graphics requires you to go a step further – turning concepts into images the entire trial team can see and hear. Arguments that survive the transition from thought to concrete image are more likely to persuade at trial.
By: Adam Bloomberg, Managing Director – Visual Communications