In most years at A2L, we are in one or more courtroom-based trials every single day of the year. Increasingly, however, I’m seeing arbitration take the place of more and more trials. One recent article published by Law360 noted that the number of federal trials has dropped by nearly half and pointed to the increased use of alternative dispute resolution (ADR) as one of the reasons for that.
While the lawyers who lead an ADR team are often the same lawyers who run trial teams, I have noticed that there is far less sophistication in the use of litigation graphics during an arbitration as opposed to a trial. In trial, whether a bench trial or a jury trial, most litigators find a way to use litigation graphics. They don’t always do it well and many hurt themselves by making what are obvious mistakes to experts like us -- but at least they are trying.
In arbitrations, however, I see a lot of trial lawyers acting gun shy when it comes to the use of litigation graphics. In my experience, lawyers should be using litigation graphics at every single arbitration, and it doesn’t matter whether the arbitrator or the panel of arbitrators are expert on the topic.
The reason for this, in my view, is that many lawyers make the mistake of thinking that litigation graphics are reserved for situations where a case needs to be simplified for an unsophisticated group of factfinders. While that's certainly a common use, it ignores the other obvious uses of litigation graphics.
For example, litigation graphics should be designed to persuade in a sophisticated and memorable way. Persuasion is, of course, important even when presenting to an expert in the field because the expert will need to argue the case in her own mind or with fellow arbitrators to find in your favor. A well-prepared and persuasive demonstrative aid is an easy way to do that.
Another obvious use of litigation graphics in arbitration is simply to organize the material and to highlight what is important. The timeline is almost always important, and if your timeline is not built to persuade, you’ve missed one easy opportunity to advance your cause.
Remember: Without the burden of the federal rules of evidence, which can pose significant limits on what you can say or present in a courtroom, you can actually be quite aggressive in your efforts to persuade.
After all, Rule 34 of the rules of the American Arbitration Association provides:
The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary.
Other free A2L Consulting articles related to arbitration, mediation, ADR, litigation graphics, and trial preparation and trial presentation generally include:
- Video: Watch an A2L trial technician in action during an international arbitration
- Winning BEFORE Trial - Part 1 - Consider Litigation Costs and Opportunities
- Webinar: Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics — Watch OnDemand Now
- 14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not)
- 5 Settlement Scenarios Where Litigation Graphics Create Leverage
- What a Great “Hot Seat Operator” Can Add to a Trial Team
- At Trial, Prepare for the Best But Expect the Worst
- How a Litigation Consultant Can Help You With Your Closing Argument
- 11 Small Projects You Probably Don't Think Litigation Consultants Do
- From the Hot Seat: To Use or Not to Use Trial Presentation Software
- 11 Things Your Colleagues Pay Litigation Consultants to Do
- What Does Using a Trial Technician or Hot-Seater Cost?
- Request Availability or Pricing of a Trial Technician, Trial Consultant or Trial Presentation Hot-Seat Operator