IT’S NOT ABOUT THE TOYS YOU HAVE, BUT HOW YOU USE THEM

For the last ten years I’ve been reassuring attorneys that they won’t look too “slick” if they use “fancy graphics.” Even before the iPhone generation, I’ve assured lawyers that technology and graphics that help jurors understand, remember, and later recall the important information from trial will never come across as too polished. Thankfully, I see this concern waning among trial attorneys. But I still face reticent lawyers once every quarter. My answer will never change – no, jurors will not “hold it against you” if you present a high-tech opening.

I was convinced of my position when I dropped by a courtroom earlier this week to watch openings in a contract dispute. Both lawyers had a trial technologist who populated a large screen with documents on command. (Phew – maybe we really are leaving the dark ages of foam core boards behind us.) I was struck by the difference in the way each attorney interacted with their visuals. The plaintiff’s attorney told the jury that while he didn’t want to “overwhelm them,” he thought it would be worth their while to look at a few key contract provisions and a telling email or two. He asked his trial tech to, “Pull up the first sentence of paragraph two on the January 13, 2009 email.” The trial tech obliged, and every juror turned their head in unison to the giant screen in the room. Then the attorney paused…stood there for 23 seconds looking at the screen without saying a word. Next he instructed his trial technologist to call up another document. The same thing happened. Text was on the screen, but he didn’t say anything about it.

Perhaps this attorney was expecting the jurors to read the text themselves, and maybe some did. But most jurors looked confused. Few read what was projected, and of those, even fewer gleaned any meaning from the call-out. This happened six or seven times throughout the opening. By the end, two jurors had nodded off – you know, like the guy next to you on the plane who jerks his head up each time his chin snaps toward his chest. My guess is this was the plaintiff attorney’s attempt at not being “too slick.”

When the defense attorney stood up things changed. He had a different trial technologist, but using the same program, so the highlighting and call-outs looked identical. The change was the way in which the attorney interacted with the document. Once text was blown-up on the screen, he instructed the jury to, “Follow along with me as I read the first two paragraphs.” Then he used a laser pointer to underline as he read. (Remember those jingles that showed the red ball bouncing on top of the text?) Jurors paid attention. They followed along. They stayed awake!

In addition, the defense attorney used a well-designed timeline displayed on a PowerPoint slide to walk the jurors through key events in the case. The attorney looked polished. He looked high-tech. (Dare I suggest he even looked “slick”?) But more importantly, he looked prepared. And he captivated the jurors. I was grateful to see “fancy graphics” and well-orchestrated technology in action so that I can pound my fists with even greater confidence when I tell attorneys that they have much more important things to worry about than coming across as “too slick.”