White-collar criminal litigation is one area in which practitioners have not been as quick to adopt the use of litigation graphics as in other litigation areas such as intellectual property, environmental litigation, or products liability.
However, we are seeing more white-collar work at A2L Consulting than ever before. It seems that defense lawyers are realizing that these days, many federal criminal laws, and alleged violations thereof, can be just as complex as a patent dispute or a commercial case.
Our white-collar criminal work usually involves helping an individual accused of a crime avoid indictment or in aiding in the defense at trial. More often than not, the allegations relate to some financial fraud and our work over the years, either for the prosecution or defense, has involved WorldCom, Enron, Celebrities, Polititions and even Usama Bin Laden (our UBL-related work was on the prosecution side).
In a fascinating article published last year in a legal periodical, Kerri Ruttenberg, a litigation partner at Jones Day, summarized a white-collar criminal case in which she used litigation graphics to illustrate the complex issues:
I often use a flow chart or timeline to condense large amounts of testimony or other evidence into a single visual exhibit to facilitate the jury's assimilation of that information. I build the chart or timeline gradually in front of the jury to control the jurors' intake of the information, and I use other design elements to reinforce key themes. For instance, during a complex white collar trial in federal court that lasted nearly four months, the evidence established that three individuals took many actions to further an accounting fraud. But my client had no knowledge of and did not participate in those activities, despite the government's allegations to the contrary. I designed the closing argument so that all of the visuals distinguished between my client (with blue slides), and the other individuals (with red slides). Later in the closing, a timeline was an effective tool for assimilating all of the incidents alleged by the government, and the blue and the red came together to graphically reinforce a key defense theme - that others (in red) consistently took unlawful actions while my client (in blue) was engaged elsewhere. Even if the jurors failed to remember each incident depicted on the timeline, they would recall the red and blue distinction and therefore would recall this important, overarching defense theme.
Ruttenberg also wrote that she uses high technology when needed but that she found a low-tech solution helpful in a white-collar case when a surveillance video was at issue:
I tested the video using a laptop, projector and large screen, but the image was too dark. So, for my closing argument, I abandoned technology entirely and instead used a large foam board to display stills from the videos arranged like a film strip. The images were clear and bright, and I held them up for the jury as I walked from one end of the jury box to the other, pointing out the important details. The jurors had a great view and were clearly engaged in the presentation, leaning forward and taking notes.
Our litigation graphics experience has been similar in white collar cases. At A2L, when a celebrity was accused of a crime, we sprung into action working 24/7 to arrange a team of artists who could help demonstrate to prosecutors, through illustration and through a group of posed actors, that the alleged crime could not have occurred as described.
In a fraud case, working for the prosecution, we developed litigation graphics, such as the PowerPoint closing below that incorporated several classic demonstrative elements cleverly into one chart. In effect, it is a players chart, a timeline and an elements/verdict form demonstrative exhibit all in one litigation graphic.
In another case where we assisted in the defense of a public official, we used a common technique during closing litigation graphics to show how many counts could not be proved and also emphasized the standard of proof.
Recall always the fundamental reason that litigation graphics emerged as an industry 25 years ago. Almost two-thirds of the population prefers to take in information visually, and on average, only 2 jurors in a 12 person jury prefer to learn by listening. If you are not supplementing a well crafted argument with litigation graphics that are more than just words on a slide, you are likely to be misunderstood by most jurors and many judges.