The “Trial Show”

Two recent cases on which we conducted mock trials prompted this post. In the first, the lawyers presenting the case did so using 8×10 photographs of the incident scene which they held up in front of the group of mock jurors. No enlargement, no projection, just a photo. Post research, I attempted to “encourage” the client to step it up to the next level and use more and different visuals – to use an electronic presentation at trial to ensure that everyone in the actual courtroom can see the photos and exhibits. But, these lawyers had never done such a thing and decided not to do so – it was out of their comfort zone. In the second case, an electronic presentation during mock trials was used by one attorney and nothing was used by the other attorney – that presentation relied merely on the oratory skills of the attorney to convey the story. The lawyers said they didn’t think the actual trial lawyers would use any visual presentation. The point of this post is to say, “come on.” It is way past time to not only be comfortable using visuals, and the technology needed to make effective presentations, it is time to realize they are expected. More than 25 years ago we were asked by a client to poll the mock jurors as to whether they, as the deep pocketed defendants, were seen as too “slick” with their trial exhibits and whether that seemed “unfair” to the plaintiffs. The answer was no then, and a louder NO now. Not only is it the case that it is a rare attorney who can captivate a jury solely with his/her oratory skills, but decreases in attention spans, and changed expectations set by Hollywood in television and movies, mandate that attention be given to showing, not just telling. Jurors want “evidence” that allows them to evaluate things for themselves. They do not want to be told a story and be asked to believe it just because someone said it. It isn’t always possible to do this, but to the extent jurors can see a case proven, literally with their own eyes, they are more likely to accept the facts they are told. In 1989, on the Presto album, RUSH released a song entitled “Show Don’t Tell.” Some of the lyrics are as follows:

Show me don’t tell me
You’ve figured out the score
Show me don’t tell me
I’ve heard it all before
Show me don’t tell me
I don’t care what you say
Show me don’t tell me
You can twist perceptions
Reality won’t budge
You can raise objections
I will be the judge
And the jury
I’ll give it due reflection
Watching from the fence
Give the jury direction
Based on the evidence
I, the jury
Show (show) don’t tell (don’t tell)
Show me don’t tell me
Hey, order in the court

We are far beyond 1989, yet these words ring more true today than then. Attorneys are trained and accustomed to communicating in words, unlike those in the general population who are inundated with visual information daily. Telling a story with pictures, in addition to the words, is so much more effective. This has been known for quite a long time, yet, it is not just the “old dog” lawyers who do not seem to understand this. I realize it is uncomfortable for those who have not done so to venture into the uncharted territory of electronic presentations, but not doing so is a disservice to clients, given the choice between engaging or boring (or alienating) the jury. Lawyers don’t have to handle all aspects of a presentation by themselves. In addition to paralegals and associates, there are plenty of professionals, like our firm, who can and will help. Though the latter costs money, the cost of not doing so is higher today than ever. There is a reason “show” comes first in the phrase “Show and Tell.”

Most people learn new information via more than one method, including auditory, visual, and kinetic means. Reliance on only one method of learning may or may not be sufficient, but considerable research has shown learning that involves multiple methods is more likely to result in greater memory for what was learned than learning that takes place in one modality. Unfortunately for numerous jurors, arbitrators, mediators, and judges, many attorneys are not well versed in techniques that enhance learning and memory. Attorneys who prefer to talk, then talk some more, followed by more talking, are less likely to capture the attention of their audience than attorneys who use high impact visual evidence to accentuate their verbal presentation. Think about it. Would you prefer to be “talked to” or “talked at” or, would you prefer to be an active participant in the learning process, for example, being given the opportunity to review easy to understand, colorful diagrams and photos that illustrate the speaker’s words? It’s an easy answer: Almost no one prefers to learn in a boring manner, particularly when there are limitless possibilities for enhancing the spoken word. From an early age, children participate in “Show and Tell,” in which they bring an item of interest to show to their classmates while explaining its purpose. There is no such thing, at least no such thing I am aware of, called, “Tell, but don’t Show” and the reason for this is almost no one could muster attention long enough to listen to a boring recitation of words absent some lively things to see. We are trained early in life to use our vision to learn about our surroundings. Attorneys’ over reliance on verbal information, often presented in monotone, is almost guaranteed to bore the jury, arbitrators, and mediators, not to mention the judge, who expect to be informed, educated, and entertained with visual depictions of verbal information. There is no way, I repeat, no way, an attorney can capture decision makers’ attention with mere words to the same extent as their attention will be captured with an effective presentation combining words and pictures. Attorneys owe it to their clients to use every available presentation technique when presenting their cases. To do anything less is risking losing one’s case because the jurors were too bored to make an informed decision. Kudos to RUSH for providing inspiration to David for this post: “Show Don’t Tell.”

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