CaseSight

The importance of effective visual communication in successful litigation cannot be overstated. Well-designed case presentations that feature interactive tutorials, 3D animation, and real-time interactivity and connectivity routinely help attorneys drive favorable outcomes, and have become commonplace in courtrooms across the U.S. 

As these case presentation technologies continue to improve, as judge, counsel, and jury expectations regarding them continue to rise, and as positive results continually reinforce the effectiveness of multimedia case presentations in driving favorable outcomes, the benefits of integrating case presentation with litigation strategy continues to grow.

The tools and talent are accessible and affordable.  But when market share and brand equity hang in the balance of a case, the real question isn’t about the ammunition you have, but about how you’re using it.  History is riddled with examples of armed campaigns that stacked seemingly overwhelming technological force and numbers against seemingly lesser opponents, only to find themselves fallen Goliaths. 

A parallel history in recent multimedia case presentation efforts seems to demonstrate a similar fate for litigation teams that stress firepower over the effectiveness of that firepower.

Effective case presentation is the telling and showing of an intellectually and emotionally believable story that is reinforced and supported by the attorneys, witnesses and case evidence. 
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The Ten Rules of Effective Case Presentation

1.  Case Presentation is the case

Effective case presentation doesn’t simply adorn or illustrate your case themes, strategies, and evidence. It is an essential component of the telling, remembering, and believability of your case.  If you separate your case strategy from your case presentation strategy, you’ve compromised the opportunity to leverage the visual learning capacity of your audience, and created a credibility gap among different forms of communication. In effect, you’ve made your case more complicated and less understandable, instead of clearer and more convincing.

It’s essential that your case and case presentation get unified in an integrated, dynamic process, the sole aim of which is to tell the story simply, powerfully, and believably. 

Case presentation assets are not supplemental to the case – they are the case, visually presented. Integrate all attorney team members, the story lines, themes, and goals, and the ways and means of presentation, into a single, focused, disciplined process.
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2. Forget bells and whistles

Rule 2 should be self-evident, but it bears underscoring: all the bells and whistles in Silicon Valley won’t make up for poorly designed case strategy, themes, evidence, and execution. 

You can’t hide the ball in a bad case with 3D graphics.  In 2008, judges, counsel, and juries are sophisticated consumers of all things digital, and they know the difference between fallacy and a demonstration of fact, and between art-for-art’s-sake and a clear, believable story.  As rich media appears more and more often in the courtroom, the sophistication, understanding and expectation of its value to the case has skyrocketed among your audience.

In addition, the credibility gap you create by a poor use of presentation tools, even if your casework is solid, can be steep to overcome and, again, detract from the effective telling and believability of your story.

Carefully consider the process and methodology of presentation at every turn; resist getting seduced by the shiny promise of new visual technologies, and don’t think they represent salvation on their own. 

You, your argument, your witnesses, and your team all lose credibility with judges, counsel, and juries when you misuse, overuse, and/or abuse case presentation technologies. It’s not the technology and the visual assets that are critical, it’s the careful application of the toolsets to effectively and efficiently communicate with your audience.

At every moment in the litigation lifecycle, think through how, why and when the story needs to get told, who’s telling it, and the goal.  Keep your presentation assets tethered to the specific communication goals of that moment.
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3. Case Presentation starts when you get the case

This is big.  Effective case presentation begins the moment the file hits your desk. No matter what your client’s goal — early settlement; motions, hearings, and stays; taking it to trial — you gain an incalculable advantage by considering case presentation strategy and design from day one. 

Thinking through how, when, and why you’ll present your case helps you establish a clear, immediately understandable roadmap for success for your team.  Analyzing and visualizing themes, arguments, testimony, and evidence to be presented as clear and convincing, and creating the visuals as part of this process, gives the entire team — associates, witnesses, experts, business people, clients, co-counsel —  a concrete, foundational, accessible point of reference as the iterative case development and design process unfolds.

In fact, establishing case presentation discipline at the outset of the litigation lifecycle can create deeper, lasting benefits to, and efficiencies in, that iterative process itself.  Full immersion of case presentation design within the case development process helps the litigation team visually test, evaluate, refine, and hone the very themes, ideas, storylines, evidence, and choices of witnesses and experts that form the fabric of the case. Seeing ahead helps the team decide now what will be most effective down the line.

That discipline also creates efficiencies in the case design process.  Not only do all litigation attorney team members get clear points of reference for evolving case goals and objectives, but the case presentation tools themselves get evaluated, tested, refined, and honed early in the process, instead of getting created in crunch time, two months prior to trial.

Establishing a robust case presentation design process as an essential part of the early case development process unifies the litigation team, hones case themes and strategies, gives the team insight and foresight, and gets case presentation assets completed early.
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4. Don’t limit your case presentation strategy; keep your options open

When case presentation lacks careful consideration early in the litigation lifecycle, or, worse, is left as an addendum to pre-hearing or pre-trial preparation, the abbreviated time frame for presentation creation forces litigators and presentation experts alike to accept a compromised design process and limited options for case presentation strategy.

In this too-common scenario, case presentation assets get rigidly locked to a predetermined strategy, and so are unable to take advantage of unexpected opportunities for case settlement, for example, or evolving opportunities for improvements to overall case strategy.  In addition, rehearsal and preparation get truncated, and, without adequate testing, the case presentation remains open to threats from the other side. 

But when case presentation is an integral part of the litigation lifecycle from start to finish, pre-hearing and pre-trial preparation offers opportunities for deep testing and refinement of case presentation strategy and assets, and the team remains responsive to opportunities as they arise.  You’re not creating your case presentation a month before trial; you’re refining and sharpening it.

In fact, integrating case presentation into the case development process creates greater efficiencies at each successive stage of the process. Tutorial assets become the basis of motion and hearing support, which informs the design of trial presentation assets.

Integrating the case presentation design process at the beginning of the litigation lifecycle means the ability to develop diverse strategies, build efficient case presentation dependencies into the process, and keep your strategic options open, flexible, and responsive to new opportunities.
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5.  Leave case presentation to the experts

The attorney team’s case expertise should direct case presentation strategy.  But when lead attorneys find themselves creating case presentation assets – usually because their graphics provider requires handholding, and/or isn’t adequately integrated in the process — the attorneys’ time and energy get drained from the most important work at hand: honing and refining case strategy, themes, and arguments, preparing witnesses and experts, testing counter-arguments — perfecting the case itself.

The burden is doubled if case presentation wasn’t considered early in the case development process.  Then, the effectiveness of both case and case presentation get severely compromised.

Engaging and integrating case presentation experts at the outset of the case not only helps litigators focus squarely on litigation, but it also helps them focus their efforts more effectively.  When the case presentation expert provides theme, evidentiary, testimony, and argument analysis from a presentation standpoint, for example, attorney teams gain valuable insight into case strategy and themes, and they get clear, concise visual support that serves as a roadmap for the case development process itself.

Almost without exception, when attorneys and case presentation experts are fully integrated into a shared process, the corporate client gets the best of both specialties.  The client gets superior overall case quality and significant cost efficiencies: The fees for case presentation specialists, after all, are considerably less than attorney fees, while the expertise-based quality of the case presentation work is superior.

Engaging and integrating case presentation experts at the outset of the case allows attorneys to focus on what they do best. Expert case presentation process and methodology promotes more efficient and focused case development.
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6. Effective case presentation design focuses on what’s effective not what looks good.

Anyone who tells you that you need a 3D Flash show at opening, or an animation somewhere at trial doesn’t understand the foundational premise of case presentation design: effective above all else. The ability to design effectively, as opposed to designing for aesthetics, is what separates the case presentation expert from the litigation graphics provider. 

Anyone can make a picture.  But only someone with courtroom experience, legal and content expertise, and knowledge to use cutting-edge technologies and the visuals they create to tell a story that is clear, compelling, believable, and memorable, understands how case presentation can directly impact the outcome of a case.

Design is comprised of three major components, and only one of them is strictly visual: graphic design.  Effective case presentation makes greater use of the other two: informational design and, especially, instructional design — the practice of arranging media and content to help presenters and their audiences transfer knowledge most effectively.

Taken together, the three develop a science for the effective transmission, reception, and retention of information by adult learners. They inform how, when, why, how much, and through what means given chunks of information get best understood, retained, and recalled by a particular audience.  Exploiting these principles is key to designing case presentation assets that are effective. 

So, interactive?  3D?  Animation? Boards?  PowerPoint? With witnesses? Experts? In opening? Closing?  What we choose is determined by the interface of the design science with the precise context and situation in the litigation lifecycle, given our goal, given what we’ve done and plan to do, and given what the other side is doing, has done, and seems to be planning. 

Beauty has nothing to do with it.  Judges, counsel, and juries don’t need to understand anything except the facts.  Beauty, to the case presentation expert, is when the facts are presented well, absorbed easily, remembered simply, and acted upon favorably.

Informational, instructional, and graphic design make up the foundation of effective case presentation. Effective case presentation is all about your audience absorbing, retaining, and acting favorably upon the facts.
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7. Use the right case presentation tools at the right time

When an expert is comfortable talking to a board, instead of referring to an interactive tutorial, why force the issue and risk her credibility on the stand?  Instructional Design 101 reminds us that every aspect of a given case situation—the speaker, the content, the means of communication, and the goal of communication — influences the potential of the audience to get, or not get, the information you want them to retain and act on.

Designing the right assets for the right moment in the case requires a nuanced aspect of the science of instructional design – understanding courtroom dynamics and defining the precise means by which your attorneys, witnesses, and experts can connect effortlessly with the judge and jury.  Comfort and confidence on the stand, as one easy example, communicates comfort and confidence about the facts of the case on the part of an expert or witness to the judge and jury. No reason to wow them with technology.  You’ve got to wow them with the evidence.

More importantly, instructional design reminds us that we don’t have to say it all at once.  Attorneys who exhaust the story in the opening find it buried in jurors’ consciousnesses when it comes to deliberations.  Repetition may be good, but too much spells boredom. And if complex content isn’t presented as simply, cleanly, and straightforwardly as possible, its complexity only gets compounded. 

The stories that get attention, get retained, get remembered, and get acted upon are the stories built firmly and steadily from effective parts into an effective whole, like Hemingway’s Old Man and the Sea, or Welles’ Citizen Kane.

Designing the right presentation assets for the right situation in the case is an art, underwritten by the science of design, and guided by deep experience and expertise.
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8. Don’t give anything to the other side

It happens over and again, and it’s devastating.  At cross, the other side calls up your demonstrative to strengthen its argument.  Something you missed about the way the information is presented actually supports the other side’s case.

How can something this devastating and seemingly obvious occur? Too many times case themes and strategies and their presentations are developed by isolated teams with myopic focus on their objectives, without time or effort spent analyzing the case presentation holistically to ensure that there are no gaps, overlaps, or conflicts. And, too often, not enough time is allotted to test demonstratives against potential threats from the other side.

When you engage effective case presentation strategy early in the litigation lifecycle, you get the opportunity to test your case presentation assets against potential threats, so you don’t wind up helping the other side.  Plus, testing and refining your own case presentation helps you better prepare to spot and exploit weaknesses in the other side’s case.

Prepare case presentation assets knowing the other side will attempt to exploit them; give yourself time to test and evaluate your decisions.
Think through potential opportunities to exploit the other side’s case presentation.
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9. Make sure your presentation trial team gets it

Two years of work to get to trial, and the trial site manager doesn’t know the case, the issues, the witnesses, or you.  So what happens when the script gets chucked and you need to respond to contingencies on the fly?

Your trial site team should become an intimate part of your case team as early as possible in the case development process, so they know the legal and content issues at stake, they know your story and themes, and they’ve met and gained familiarity with your experts and witnesses.  Perhaps most important, they need to understand the other side’s position and possible tactics, so they can adjust with you quickly as you respond.

The trial site team is one of the important cogs in the trial machine.  This team should be steeped in the legal and content facts of the case and intimately aware of both your and the opposition’s strategy and arguments. They should have expert knowledge in the design and presentation tools at work in the trial.  More importantly, they should understand the strategy and design thinking embedded in every one of your case presentation assets.

In short, the case presentation trial site team should extend and underwrite the expertise and experience of the case presentation expert, throughout the course of the trial.

Your case presentation trial site team members should be experts in the case and in the case presentation strategy, assets, and goals, so they can respond quickly and effectively during trial to contingencies and changes in tactics.
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10. Effective above all else

In the digital age, familiarity with and expectations about multimedia presentations continue to expand among judges, counsel, and juries.  The growing sophistication among the primary audience has enabled attorneys to employ powerful new storytelling tools more liberally in their cases, while at the same time requiring of them greater responsibility and attention to how, when, why, and to what end they employ these tools.

This audience, after all, isn’t fueled, or fooled, by bells and whistles.  Nor is the other side. The misuse of multimedia case presentation tools and strategies inevitably results in missed opportunities and less than optimal results. 

The single most important rule of thumb in designing case presentations is: effective above all else. 

The point, after all, is to win, not to have better technology than the other side. To be effective—to help you win—your case presentation needs to start when you get the case, it needs to be fully integrated into your case development process, it needs to employ sound graphic, informational and instructional design principles, and, perhaps most important, it needs to be spearheaded by a case presentation expert, someone with the experience and knowledge to develop case presentation strategy and design case presentation assets that will help you drive a win.

The only thing that matters about your case presentation is its effectiveness in driving a favorable outcome.
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