Is Trial Presentation Part of Your Case Strategy?

by Michael Boucher

Lights, camera, all rise.  When it comes to trial, many lawyers over look or underestimate the significance of one of the most important aspects of their case, the presentation.  In today’s fast moving and overly informed society, it is crucial to capture and hold the jurors attention.   There are many varying approaches to trial presentation, exhibit boards, PowerPoint, Electronic Trial Presentation (ETP), jury books and the list goes on.  With so many options and so many different opinions, which is correct?  While every case is different, I will tell you that the answer is almost always the same, use a variety of presentation approaches to create your presentations. 

As an example of how to strategically select your presentation of  evidence at trial, lets discuss boards.  I was in trial about eight years ago and we were retained by the defense.  The plaintiff was examining a witness and the lawyer pulled out an exhibit board which was a photo of a faulty piece of equipment which had allegedly caused serious bodily injury.  So far nothing too strategic about the approach, except for size.  Remember, size matters.  In this case, the plaintiff’s attorney had enlarged this photo to a size of around 18”x18”.  My first thoughts were how cheap can a lawyer be.  I was convinced that this was another cost related issue.  My demeaning attitude was quickly turned to humility as the lawyer who had held that board in his hand while questioning the witness turned to show the jury, paused, turned and respectfully asked, “your honor, I think the jury is having difficulty seeing my board, do you mind if I move closer?”  The judge graciously granted the request and that lawyer walked up to the rail of the jury box, looked each one in the eyes as he showed them this photo.  While the photo was not overly impressive, nor did it possess any type of “ah ha” factors, what it did posses was a ticket to establish an advanced and more intimate relationship with the jury.  I feel that most if not all cases have these types of opportunities.  Often times it is getting more credibility for your expert by getting them off the stand and down in front of a jury to explain a board or draw a diagram.

Another like opportunity arose during a patent infringement case with an antitrust counter claim.  This trial was in US District Court and we were utilizing ETP.  Our lawyers wanted us to scan the cover of the patent to project to the jury in a larger than life way.   In this case, we had the approach that would put us in an advantageous position.  Rather than scanning the patent we did something I almost always advise against.  We handed information to the jury.  The first chair took the patent and handled it with kid gloves as if it was the Holy Grail itself.  Walking cautiously with the patent and gently supporting it with the palm of his hand, he slid it from his palm to the palms of the juror.  The jurors gazed upon the patent with its red ribbon and gold seal with awe and amazement.  Each one of them only holding the patent with an open hand below it.  Not one touched the face of the document or opened it.  This approach was not the most ingenious ever thought of, it was simply an opportunity to get intimate with the jury and allow them an experience that not one of them had ever had before, to hold an official United States Patent.  While the case did not hinge on this, I will tell you it had the  jurors really thinking.  The opposing trial team had made some traction with a very simple, straightforward and commonsensical narrative.  When these jurors held that patent, their demeanor changed.  They gave a lot of credibility to that patent and the defense’s notion that the patent was not valid for a variety of reasons was no longer a viable theme for them.  Their antitrust claim was also not valid because it was patent enforcement and not antitrust.  This reaction can be closely compared to the “halo effect” that is generally applied to people who have instant credibility because of who, or in this case, what they are.  There are many that will argue that the “halo effect” is the reason OJ Simpson was acquitted in the criminal trial.  Although you can not underestimate that infamous theme, “if it doesn’t fit, you must acquit!”

These are but a couple of the hundreds of strategies that can be applied to any given case.  Let’s shift from strategies to methodologies.  There are four primary methodologies starting with the most common and widely used, Physical and Static.  The primary example would be an exhibit board or document blowup.  This presentation methodology is in a physical form and there is no control to manipulate the document or image at all.  As with most things in life, there is a time and place.  One of which I cited earlier with the hand held board.  Exhibit boards give attorneys a certain comfort level, a form of paper if you will.  Many attorneys believe the use of trial or exhibit boards exclusively is a cost containment measure.  I will invite you to compare costs of board usage to alternative presentation methods, you may be surprised. 

A strategic aspect of using exhibit boards is duration, how long can that piece of information sit in front of the jurors.  Often times opposing counsel is scrambling to refute the brilliant line of questioning and totally forgets that board sitting in front of his jury.  This makes it possible to have some persuasive piece of information resonating in front of the jury.  If attorneys are honest with themselves, almost every trial attorney has allowed the opposition to get away with leaving a board up, or have left one up themselves.  I am sure he or she apologized and said it was a mistake, a smart one at that. 

Timelines should, in my opinion, always be on a board.  Even if you are creating some type of interactive timeline that allows for greater detail, a summary timeline board of your case should be created.  It allows you as an attorney to have a single presentation piece that is the anchor to your case.  It outlines the events that support your fact patterns and themes.  It also allows you to use other presentation approaches to provide support, such as using ETP to present documents and testimony that validates your timeline entries.

Moving along the continuum of methods we have Physical, Static and Progressive.  Examples of this type of presentation would be magnetic boards, flip charts or boards with acetate overlays.  The first example that many people think of is a magnetic crime scene board.  You know the one where the attorney instructs the timid witness to step down from the witness stand and show where they were when they saw the  defendant commit the crime.  While the example may be from some Perry Mason type movie or show, it does allow for a witness to become more involved with the jury as well as make the witness more dynamic.  Progressive exhibits are great tools to illustrate evolution, to help explain in the form of a tutorial and to help comprehend a, which came first issue, much like the chicken and the egg.  The main draw back with using any type of progressive aid is cost.  The creation time is expanded depending on its complexity, the actually production of the physical exhibits involves a large amount of materials as well as labor.  Let’s keep in mind, these are not dynamic exhibits and cannot be altered unless they are recreated.

Leaving the physical world of presentation and moving to Electronic and Static.   Interactive exhibits created in Flash™ or PowerPoint™ are electronic and static being the inability to alter or manipulate on the fly.  We will not delve into linear vs. non-linear, but please note, linear presentations are made to go 1,2,3…  and there are a few times in a trial when information [evidence] is presented in that fashion, opening statements and closing arguments, for example.  Even then, watch out for the sustained objection that may force you to go 1,3,5,6,7…  Often times, expert witnesses will come to the table with their own presentation.  There is nothing wrong with this approach and if implemented correctly can be an effective presentation strategy.  We have used many of these types of exhibits in complex patent cases that require an organization to the information, a predetermined flow or outcome if you will.  This type of presentation method is particularly successful when coupled with Electronic, Nonlinear and Dynamic, generally referred to as Electronic Trial Presentation (ETP).   The use of ETP allows the jury to see the supporting evidence that supports the experts’ presentation.

ETP as previously identified is most commonly known by the two main presentation programs, Sanction™ and Trial Director™.  As with any software, the power is in the hands of the end user.  When using such a presentation method all evidence, documents, photos, videos, synchronized videos, etc. are “loaded” into the software and made readily available.  Any particular page of any particular exhibit is at your finger tips.  Not only does such a method facilitate organization of information and make obsolete the often too common phrase, “a moment your honor while I locate that exhibit” it also allows attorneys to be more dynamic.  The same is true for all of your information that you will or may present at trial.  Moreover, you and your team will have complete control over how the information is published to the jury and what aspects are published.  When I speak on this topic I often like to demonstrate how something so simple can make such an impact.

I utilize a document from the movie The Rainmaker that is written from Great Benefit Insurance Company to a Ms. Dorothy Black.  The letter states that her claim “…has been denied on seven prior occasions…” and then I use the call out tool to have the words “We now deny your claim for the eighth and final time…” now this is where the words jumping off the screen or monitor becomes impactful, as I underline in red the words “…you must be stupid, stupid, stupid” [emphasis added].  I will often times hear people talking about this one sentence on their way out of my seminars.   If left to their own observations, jurors may not give that information the attention or weight it deserves.  In an effort to continually refine our understanding of juror behavior, we routinely conduct jury exit surveys.  One of the remarkable comments we often hear outside of organization or lack thereof, is, “that I did not believe this witness, or that attorney because I wasn’t shown any evidence.”  Another one that is remarkable is “we never saw it, the attorney only spoke about it and the judge said what the attorneys say is not evidence.”    It’s like the old saying goes, “believe none of what you hear and only half of what you see.”  The importance of presentation cannot be underestimated.

There are many other tools available to aid in your presentation.  The document camera or “Elmo” as it is regularly referred to is a good example of a useful tool at trial.  The more complex the case, the more scrutiny that must be given to how your case is presented.  Today’s jurors, young and old alike have been conditioned by the internet, cable news networks and the detectives of CSI.  How does your trial presentation measure up?