By Dr. Ken Broda-Bahm:
The importance of including graphics when presenting to a judge or jury is understood these days. Still, I think the design and execution of these graphics can be too often treated as an afterthought. Instead of using a timeline as a central and fundamental way of structuring the case for fact-finders, it is developed at the end and treated as a plug-and-play addition to an already-developed trial story. You might create a diagram showing the key case concepts and relationships as a way to visually spruce up the verbal presentation instead of using it as a over-arching mental map for jurors to use in grasping the story and claims in the case. Bottom line, the visual channel for communication shouldn’t be treated as a side-road, it should be treated, along with the verbal, as one of the two main highways. Good visuals aren’t the icing on the cake of an otherwise verbal substantive case, it is the cake.
A new proposed rule takes a step toward acknowledging this. The U.S. Judicial Conference’s Advisory Committee on Evidence Rules voted to advance the rule clarifying that a judge may allow use of an illustrative aid if its purpose of assisting jurors’ understanding of an argument isn’t outweighed by “the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.” This essentially codifies the discretion that most courts have already used in deciding on a case-by-case basis whether demonstrative exhibits can be used in openings, closings, and witness examinations. The rule also calls for these exhibits being entered into the record when practical, and in being provided during deliberations only when both sides consent. Ultimately, I think that advocates and the legal system will be better off moving toward a system that recognizes the visual channel as a key route to influence in trials. Practically speaking, it reminds us that visual preparation is part of trial preparation, and attorneys should start early in developing this part of the message. In this post, I’ll share three considerations that should go into that planning.
Be Visual, For Both Attention and Persuasion
We can intuit that using visuals as part of a message can “wake up” the jury and help them pay attention, but we also have our own research showing that a trial message that is reinforced with continuous visuals is more likely to be understood and more likely to yield credibility for the presenter. There is also a broader line of research on the “truthiness” effect, showing that a message accompanied by even a non-probative image is more likely to be believed. So instead of treating the visual channel as a way to shine some light on your proof, it helps to see it as part of your proof.
Be Both Planned and Spontaneous
The initial language in the Judicial Conference rule required attorneys to disclose all demonstratives in advance, but this was walked back to allow for more spontaneous use. The proposal now reads, “Ample advance notice might be possible for a computer simulation of the accident giving rise to a lawsuit, but no advance notice may be possible for a handwritten chart written by an attorney as a witness responds to the attorney’s questions on cross-examination.” So it would be up to the trial judge to decide on the specifics of notification requirements (whether, when, and how) for a given trial. This recognizes the advantages in being multi-modal in using both prepared and spontaneous charts. Plus, these days it is worth noting that “spontaneous” doesn’t necessarily mean handwritten – an assistant might create graphics on the fly, and AI is actually getting quite good at generating images quickly with the right prompts, and likely to get much better in the near future.
Take ‘Argumentativeness’ With a Grain of Salt
What the rule won’t change is that one of the main objections to the other side’s demonstratives will be that they are “argumentative,” and often and in practice, that comes to mean “they communicate something that I don’t like.” Obviously, with or without graphics, attorneys cannot expressly make arguments in opening statements. But, importantly, openings are not designed to be neutral either. They exist in order to preview the arguments that will be made in testimony and in closing. Advocates might consider seizing on the language of the rule in order to defend reasonable demonstratives in that context: The test is not whether the graphic communicates a point favorable to one side, the test is whether it is prejudicial, misleading, confusing, or time-wasting. So when the other side whines about a demonstrative vaguely being “too argumentative,” it should be within bounds to press them on which of those listed faults is so substantial as to outweigh the graphic’s benefit in helping jurors understand an argument.
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Other Posts on Visual Persuasion:
- Animate It: If Jurors See It, They’re More Likely to Believe It
- Witnesses, Add to Your ‘Truthiness’ by Showing Pictures
- Learn Visual Storytelling from the Second Impeachment Trial’s “Day in the Life” Video
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