This article originally appeared in the Winter 2020 issue of Trial Lawyer magazine, the quarterly publication of the Oregon Trial Lawyers Association.
By: Don Corson
There is a reason we all know that a picture is worth a thousand words, and seeing is believing. Visuals and imagery are fundamental to understanding. Whether it’s your first trial or your 100th, these are good principles to keep in mind.
Long before there was the spoken word, people understood the world in substantial part through what they saw. Life and death decisions could be based on quick visual impressions. That is still true. We see and start to respond to something even before we can attach words to the image.
The power of images
We should not want to make jurors work any more than necessary. Understanding facts and arguments presented as words takes mental effort. Visual understanding, properly done, can feel almost effortless. This is not to diminish the power of individual words, or the importance of good story telling. It is to emphasize the persuasive impact of what we see. An eyewitness, even when wrong, can be a strong witness because “I saw it with my own eyes.” When a juror is an eyewitness to something in the courtroom, so to speak, that experience can be powerful.
You will likely take in the x-ray image above, Fig. 1, in an instant. You can tell this person has been hurt badly. You may have had a visceral response to the x-ray, recoiling from it. You did not need to read or hear a word for you to have thoughts and feelings about it. I could have written or spoken paragraphs about this person’s injuries without having the impact of this single image.
Now, see the image in Figure 2, to the left. No one has to tell you this person has gone through a world of hurt. When you saw this face, your own face may have ached. If I were to use words alone to hammer away at the pain and injuries, either orally in a courtroom or in writing in a brief, it would not have the same persuasive power as this image.
Less attention-grabbing in an article, but just as important in a trial, are photographs and video clips showing the plaintiff enjoying life before their injuries. Seeing the person playing soccer with their child, riding a jet ski, or laughing at a family picnic, tells the jury volumes about the person that is difficult for the defense to undermine.
Beyond x-rays and photos
You may be thinking, well, that’s nice for photographs and x-rays, but what about boring documents, or information that cannot be easily photographed? Visual presentation of such materials in trial can still be powerful, but requires more thought and preparation.
Small three dimensional objects, like the vials in Figure 3, can be difficult for a jury to see from a distance. A small object can be put on a presentation device such as an Elmo, and its image projected onto a screen. With the court’s permission, the object can be shown to the jury, where each individual juror can hold the object before passing it along to the next. We did this in a trial. The jury could see and feel the tiny size of the correct vial of the medication and personally compare that to the actual amount of the drug that was administered. Jurors could easily grasp that no one who knew what they were doing would confuse one for the other.
Don’t forget standard three-dimensional medical models, the kind that a physician might use to explain to a patient the injury to their knee or the surgery to be done to their arm. One of these, a model heart, is shown in Figure 4 shown to the right. Because such models are made for medicine, not for litigation, they have credibility.
Documents, such as medical records, written materials obtained in discovery, or deposition transcripts, can present courtroom challenges. The image can be put on a poster or scanned into a computer and shown on a screen, but the important part may be lost in a sea of details, and small print may be difficult to read. One approach is to show both the entire document page and a blow up of the key language, perhaps highlighted, as is demonstrated in Figure 5 below.
Visuals created specifically for trial present special issues. Some evidence is quantitative. Numbers lack visceral punch. Our brains did not evolve processing numbers, and numbers are not emotionally powerful. But numbers (statistics, data, counts) can help rationalize or support a gut-level decision. Numbers and statistics can be made visual for easier comprehension. When creating such visuals, remember:
- A good visual makes one point.
- A good visual is as simple as that one point permits, without distractions.
- A great visual makes that one point without words (unless the visual is text itself).
Not all courtroom visuals are pre-made
All a juror can do while in the courtroom is to watch, listen, and perhaps take notes. As a whole, a jury is watching pretty much everything, all of the time. In a sense, everything you do is a visual, or at least part of a jury experience that is heavily influenced by what jurors see. Consider even how you appear in terms of your dress. A juror once told me after a trial she that we were local and that defense counsel were from out of town by how expensive-looking defense counsel’s suits were, despite an order in limine prohibiting mention of where the defense attorneys were from.
Some visuals are created live, in front of the jury. In one of our medical negligence trials, a key disputed issue was when a brain injury occurred. We called the treating surgeon as a hostile witness. While the surgeon was on the stand, we asked him to circle and initial on a timeline when the injury happened. It was not possible for opposing counsel to back a witness away from testimony that was memorialized with a black marker right in front of the jury. Once that image was formed, it was used over and over again during the rest of the trial. It dominated the timing dispute.
In another trial, we needed to get across the incredible life-changing impact of a child’s leg amputation injury. My partner Lara Johnson came up with the idea of bringing out one prosthetic leg at a time, starting with the child’s first, and progressing to her most recent. The jury heard about the difficulties of wearing the devices, the cuts caused by the edges, the time it took to take them on and off, and the blistering of the skin. Taken together, as shown in Figure 6 below, the prosthetic legs silently told a visual story of years of harms.
Many visuals can be created by witnesses in the well of the courtroom while the jury watches. Some witnesses are better at this than others. Some need dry runs to prepare for doing this. Typically, what is needed is a brief exchange that establishes that doing the sketch would be helpful in explaining something to the jury, and the judge’s permission to have the witness step in front of the jury box, marker in hand, to draw on a pad of paper on an easel. After the image is created, an exhibit sticker can be added, and the drawing can be offered into evidence.
Perhaps the most powerful visual I’ve seen at trial did not involve any paper, markers, or screens at all. Many years ago, a physician stepped down into the well of the courtroom to do a partial physical exam of the injured person. He got down on his knees, his hands on the injured person’s partially paralyzed legs, explaining what he was doing and the significance of the findings as he went along. The jury leaned forward, hushed, attentive. Not only was the exam informative and persuasive, it established our physician as a real doctor who cared for patients and knew what he was doing. In the battle of experts, ours had already won.
The mechanics of visuals in the courtroom
A fundamental rule is that all jurors need to be able to see every visual used in the courtroom. Text needs to be large enough that all jurors, even those with diminished eyesight in the back row, can read the exhibit without effort. Exhibits need to be positioned so that all jurors can see them. That can take some effort, so that we don’t get in their line of sight.
The most important images should be made into posters. Once admitted into evidence, the images can also still be shown on a screen, if desired. But as posters, they will go with the jurors as they deliberate. If you offer an exhibit that is the size of a standard piece of paper, you can still blow it up on the screen or make a poster-sized copy, but only the small actual exhibit will go to the jury room for deliberations.
With two exceptions, make all posters the same size, making them easier to handle and manage. We typically use 3 ‘x 4’ foam core boards. One potential exception is for visually disturbing images. Historically, many judges were reluctant to admit some graphic evidence into a civil trial, thinking that it unfairly might affect juror emotions. Consider making these exhibits small, and cover them with a flap of paper. Once admitted into evidence, let jurors know they do not have to look. They will be even more interested. You have shown yourself to be a decent person who is not overtly pitching to emotion, and is not forcing potentially offensive materials on jurors.
The other potential exception is where you have a powerful exhibit that you want to keep in the jurors’ minds as much as possible. In one trial, we had the critical time lines on 4′ x 8′ foam core boards. Even when not in the well of the courtroom, the boards were always partially visible to the jury. When a defense witness said something inconsistent with the time line story the jurors already knew, their eyes would look back to the boards in silent repudiation of that testimony.
If you intend to show an image on a screen, do you want to use a TV screen or a projector screen? I prefer projection, because it’s easier to present larger images. With any screen, consider visibility under courtroom listing conditions. You need to have the right equipment (our projector is rated at 6500 lumens) and to test it in advance to see how well it works.
Our traditional professional strengths as attorneys involve words. We write, we speak, but how many of us are naturally good at creating visuals? We can and should get help.
There are good resources for learning about visual presentation in the courtroom. Ball and Karton, “Theater Tips for Trial” (4th edition, Trial Guides) has an excellent appendix on the subject that is easy to put to use. There are many other written references for helping you to create visual aids and exhibits for trial. There are also people and companies that can do some of the work for you. Over the years, we’ve asked local communication consultants to create timelines and other visuals to help present evidence in the courtroom. We have relied on Fat Pencil Studios of Portland to make sketches, and have hired (among others) Medi-Visuals and High Impact Graphics to create medical illustrations. Visual people can create more effective images, and can help you think about ways to present information that may not have ever occurred to you.
Other help can come from people who can review potential exhibits before you use them at trial. Focus groups are a great place to test how people respond to visuals. Do they get the point that you want to make? Are they distracted by something else? Could the visual be made clearer or simpler or more effective? If you are running out of time before trial, show draft visuals to staff or family who are not terribly familiar with the case.
While words are the building blocks of the law, words alone are not the foundation of persuasion. What we see can have great impact on what we believe and how we feel. Because seeing is believing, and a picture is worth a thousand words, it is worth the time and effort to help the jury see your case and evidence in the best possible ways.
Don Corson is a partner at The Corson & Johnson Law Firm, 940 Willamette Street, Suite 500 Eugene, OR 97401. He represents people injured or killed by defective products, industrial and utility accidents, medical negligence, and trucking and other major vehicle collisions. He is a past president of OTLA and contributes to the OTLA Guardians of Civil Justice at the Guardians Club level. He can be reached at email@example.com or (541) 484-2525.