by Tony B. Klapper
Managing Director, Litigation Consulting & General Counsel
I’ve recently joined the litigation consulting team at A2L as its Managing Director. This means that I will be working closely with top litigators to help them craft persuasive themes and stories, assist in the testing of a case during a mock trial exercise, and develop powerful demonstrative exhibits.
In my 20+ years working at Kirkland & Ellis and then Reed Smith, I have participated in many trials, arbitrations, evidentiary hearings, mediations, and board presentations. Almost without fail, I have been the attorney responsible for coordinating and developing the litigation graphics for these events. That did not mean putting mouse to screen in a graphics program or PowerPoint. Instead, I would put pencil to paper and sketch out a great idea that someone else transformed into a powerful litigation graphic. It is work that I have always been passionate about.
As I transition from working on graphics two or three times a year to developing them every week, I want to take a moment to reflect on what I’ve observed about trial graphics as a litigation partner at two major law firms.
- Janus-like slides. Janus is the Roman god of gates and doorways. He is depicted as having two faces and typically represents beginnings and endings or contrasting experiences, such as war and peace. Although not one of your sexier Roman gods – clearly no Jupiter or Venus – Janus does inspire some effective litigation graphics: A split-screen slide that reflects a cause on the left and an effect on the right, or a representation or claim on the left and visual proof that the representation or claim is false on the right. A single, simple split-screen slide can instantaneously convey a powerful message without resorting to a series of dull, ineffective bullet-point assertions.
- The Timeline. Effective stories are not simply recitations of chronological events. But “when” something happens and how that something relates to “when” something else happens is almost always a central feature in litigation and part of a good story. Stories have beginnings, middles and endings. They transport us through a maze of actors and activities, all anchored in time. Instead of vertically listing from top to bottom a series of events -- as many fond of the easel and flip chart will do -- a well-crafted and visually appealing timeline allows you to elegantly develop your narrative in linear fashion. But it’s not just the narrative. A timeline that is chock full of entries may tell a completely different story than one with wide gaps of time, even without needing to read the fine print.
- The Hyperlinked Timeline. Of course, reading the fine print may also be important. I have designed interactive timelines that employ hyperlinks to document call-outs. This allows the audience to remain anchored chronologically while at the same time digging into the supporting details that prove up your case. I have even used parallel timelines, each with hyperlinked call-outs, to compare and contrast, provide context, or simply rebut unsupported claims with evidence-backed truths.
- The Timeline on Steroids. One of the more brilliant lawyers I ever worked with was David Bernick, now a partner at Dechert. David taught me a tremendous amount about story-telling and graphics development. Of the many things that David was skilled at, I was always particularly impressed by his ability to design timelines. But not just any timeline. David would weave together multiple, interrelated concepts into a single slide that employed timelines (sometimes in parallel), trend lines with vertical and horizontal axes, and icons that conveyed a wealth of information and brought focused simplicity to a sea of complexity.
- Photographs. Of course, a graphic does not need to have bells and whistles to be effective. Some of the most effective PowerPoint litigation graphics I ever created were simply pictures that conveyed an important point: a picture of an incredibly dusty asbestos manufacturing plant from the 1930s to contrast with the well-ventilated and controlled facility in the 1970s. Or photographs of filthy hotel rooms where an older manager was fired to contrast with sparkly clean hotel rooms where the younger manager was retained.
- Checklists. There is nothing simpler than a “yes” or “no” answer. Whether organized around the elements of your case, key scientific or medical observations, or even the verdict form, the simple “yes” or “no” checklist slide is often the best way to orient a jury around critical bottom-line conclusions.
- Process Charts. In the majority of cases I have worked on, I represented the defendant. In the majority of those cases, an underdog plaintiff claimed my deep-pocketed manufacturing client had cut corners; put profits over safety; said one thing, but did something else; and/or just stuck its proverbial head in the proverbial sand and ignored known risks. These can be tough cases to win. But one thing I have always found to be effective in crafting my client’s narrative in these types of cases was to spend time on process. I would detail graphically all the steps and controls, and people involved, in the cradle-to-grave design, manufacturing and post-sale monitoring of my client’s products. These process charts would not only help the judge and jury understand a complex series of events, they would provide their own implicit message. The greater the complexity of that process (depicted with an array of arrows connected to boxes connected to more arrows) the easier it was to believe that the company and its employees were not taking short cuts, but rather took pride in the products they made. This went a long towards de-demonizing Goliath in those cases brought by David.
- THE Slide. It does not happen in every case, but one of the more rewarding aspects of demonstrative design is to be able to effectively convey your entire case and its central theme or themes in a single slide. I recently worked on a matter where the plaintiffs and their experts merely assumed that the defendant was the cause of the plaintiffs’ harm. Actual proof required a series of steps, each of which the plaintiffs ignored in favor of a deceptively facile two-step explanation. Armed with that theme early in the litigation, I secured “assumption” admissions from critical witnesses and wove into the opening and closing decks a single slide that clearly conveyed the plaintiffs’ short cuts.
- Color. As a young associate many moons ago, I learned that the color red can have a powerful effect on people. During a trial training program, a seasoned litigator stood up and demonstrated how to cross-examine a witness. When it came time to impeach the witness with prior testimony, the litigator prominently displayed a bound volume of that testimony -- supported with a bright red backing. Each time the witness strayed from his testimony, the litigator merely had to flash the red-backed volume, and the witness and the jury knew what was coming. Soon no impeachment was even necessary; once flashed, the red-backed volume, like an electric dog collar, served to keep the witness’s testimony in line. From that day forward, I understood the power of color. If you are trying to say something negative through a demonstrative exhibit, red is most certainly your color.
Other A2L Consulting articles related to the development of litigation graphics, the art and science of litigation consulting, and the development of a strong narrative for your case:
- 11 Things Your Colleagues Pay Litigation Consultants to Do
- 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant
- 6 Triggers That Prompt a Call to Your Litigation Consultant
- Run a CONFIDENTIAL Conflicts Check with A2L Now
- 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
- 12 Reasons Litigation Graphics are More Complicated Than You Think
- 10 Things Litigation Consultants Do That WOW Litigators
- The 12 Worst PowerPoint Mistakes Litigators Make
- 5 Trial Graphics That Work Every Time
- Litigator & Litigation Consultant Value Added: A "Simple" Final Product
- How I Used Litigation Graphics as a Litigator and How You Could Too
- 7 Things In-House Misses When Litigation Consultants are Underutilized
- 10 Types of Value Added by Litigation Graphics Consultants