A recent infographic created by the folks at MedicalBillingandCoding.org is a terrific example of the persuasiveness of visual evidence. We are fans of visual evidence and have written about the appeal several times. Your graphic doesn’t have to be starchy and technical and, in fact, it’s better if it isn’t.
The complete graphic “Sitting is Killing You” is cartoonish and memorable. It draws you in and informs and entertains you so that you remember the gist of the message. The tone is light and amusing. The message is about life and death. Your personal death. And then comes the coup de grace.
You reach the end of the infographic and are offered the sources— Government offices. Major newspapers and journals. Medical journals. Respectable and staid entities that “must be” credible.
It’s a bit like that old trick of attorneys who walk in with a thick notebook or several paper boxes that are obviously heavy. They plunk them down on the table and then refer to them as “all the studies that support this position”. They do not name all of them. Just a few. But the weight of the boxes (and the presumed evidence) often hits the mark with at least some jurors.
So whether it’s the weight of the evidence or the weight you accrue as you sit on your butt and shorten your life—this cute and memorable infographic has lessons for us:
- Make your visual evidence non-threatening.
- Carefully give credible references for your visual evidence.
- Your visual evidence will certainly be vetted by opposing counsel and the judge. The reason for the inclusion of references has to do with the jurors. You want the friendly graphic appearance to help jurors believe they can grasp even complex information. You want the source information so jurors know they can trust the information as credible.
It’s like being a good host. You serve up interesting and engaging information and show it to be credible for the layperson by invoking all the ‘experts’ in your reference list.
Not too many. (You want them to read it. You want it to have impact but not overload their attention.)
Not too few. (You want it to seem like there is much to support your position.)
Jurors (and likely your client) will appreciate it.
Joffe, H. (2008). The Power of Visual Material: Persuasion, Emotion and Identification Diogenes, 55 (1), 84-93 DOI: 10.1177/0392192107087919
As Editor of The Jury Expert since we moved to an online publication in May, 2008, I am proud of what The Jury Expert has become. We recently moved to a quarterly publication schedule to give us a little breathing room in the breakneck pace of the work. The latest edition of the Jury Expert is now available.
Taming the Reptile: A Defendant’s Response to the Plaintiff’s Revolution by Ken Broda-Bahm, Ph.D.
The Reptile Approach has been immensely popular among the Plaintiff Bar and many articles have discussed the benefits and drawbacks of this approach. Rather than going down that road again, we are publishing a look at how to attack the soft underbelly of that scaly reptile. How do you circumvent a snake? You start by reading this Defense approach to the Reptile Theory.
The Truthiness of Visual Evidence by Eryn Newman, Ph.D. from the University of California at Irvine, and Neal Feigenson, J.D. from Quinnipiac University School of Law
Stephen Colbert has made “truthiness” a well-known concept. “You don’t look up truthiness in a book. You look it up in your gut.” So what happens when truthiness comes to your courtroom and then makes it into the deliberation room? Two researchers take a look at how truthiness interacts with visual evidence and a trial consultant (and visual evidence expert) responds.
Neutralizing Negative Pretrial Publicity: A Multi-Part Strategy by Adam Shniderman, M.A. from the University of California at Irvine
Negative pretrial publicity is a nightmare. You have to address it but how to do that effectively is often a puzzle. This writer presents a multi-part strategy (e.g., pre-trial, during voir dire, and during the case presentation) to not only addressing, but neutralizing negative pretrial publicity.
When Does a Defendant’s Impulsivity Exculpate vs Incriminate? by Clayton Critcher, Ph.D. from the University of California at Berkeley, and Yoel Inbar, Ph.D. from Tilburg University, The Netherlands
Did your client make that decision fast or slow? As it happens, the observer may attribute immoral character to those that make a fast decision, or they may attribute a higher level of morality to those that seem to weigh the evidence and consider their choices before deciding. So what can you do to frame the decision made by your client in a way that will benefit and not harm them? Two researchers tell us about their work and two trial consultants respond with their thoughts on applications to litigation advocacy. The researchers also make a brief reply to the trial consultants comments.
We often have a “new” favorite thing in our issues of The Jury Expert. Typically, it’s something new (or new to many of us) and we are introducing you to something we’ve found that is just wonderful. This time though, it’s a little different. This has been around forever. Truly. But we think that just because you’ve known about it forever doesn’t mean it can’t be your new Favorite Thing too!
Inaccuracy in Political Self-Perception: Young Adults Are Not as Conservative as They Believe by Michael Bernstein, Ph.D. from Pennsylvania State University, Abington, and Ethan Zell, Ph.D. from the University of North Carolina at Greensboro.
There are basic things we all know about ourselves. You are tall or short. You have straight hair or wavy/curly hair or, perhaps no hair. Your eyes are brown, or blue, or hazel–more or less. And you are liberal or conservative. We know these things to be true. Except when we don’t. New research shows us that we may be inaccurate in what our politics truly are–especially when we are young. You may not be as liberal or as conservative as you think. Two researchers share their findings and two trial consultants consider this in the context of their day-to-day work in litigation advocacy. The researchers then make a brief reply to the consultants.
Book Review- Social Media as Evidence: Cases, Practice Pointers, and Techniques by Rita Handrich, Ph.D. of Keene Trial Consulting
Social media was fairly new not long ago and now it is a basic consideration of voir dire and jury selection (not to mention concerns over social media during the trial itself). This book (from two attorneys at DLA Piper) covers the basics of social media investigation, pitfalls, and offers multiple techniques for voir dire. Read this review and see if you’d like to add the book to your library.
When I began as Editor of The Jury Expert and we moved to online only publishing in May of 2008, we didn’t know how popular the publication would become. Of course, we had hopes but we estimated our readership would top out at about half of what it is today. So now, naturally, we are hoping we will simply continue to grow and grow! (Please tell your friends, family, colleagues, judges, and opposing counsel about this wonderful and free litigation advocacy publication!)
Although all the issues of The Jury Expert are online, only those from May 2008 through the present are published in their entirety online. For older issues, you have to download the pdf to see what’s included. Until now.
We’ve noticed that as various events happen in the news or in the courtroom, some of our older articles get spikes in traffic. It’s happening more and more as we grow the size of our archives, drawing on what we think of as classic articles or what journalists call “evergreen” articles. We will always write articles based on current litigation issues in the news, but it will inevitably include articles that stand on their own over time.
So for this issue, we scoured the print versions of the old publication and found articles that are truly classics but that few have seen. Now you can. And with our internet indexing–as future visitors come looking for them–more and more of you will see them. It’s a good thing. Don’t miss out!
Here’s what you’ll find in the latest issue of The Jury Expert:
This issue of The Jury Expert is filled with classic (aka timeless, charming, ever-useful, relevant, et cetera) articles from an earlier time. Read this introduction to see what classic TJE articles spiked as the verdict from the George Zimmerman trial came in.
Identification of juror bias is an ongoing challenge. Here’s a look at how life experiences and attitude formation build juror biases and how to engage jurors during voir dire from one of the pioneers in the profession.
One of the challenges in effective voir dire (among many) is how to ask your questions of jurors to identify who really won’t be fair–but without asking it that way. Here’s a way to structure your questions to increase the strikes for cause.
We’ve all heard the statistics saying visual evidence is much more persuasive than verbal evidence. But is it based on anything of substance? An experienced visual evidence consultant says we should question what we think we know.
This one is written by Doug Keene so you will find it familiar-sounding. We do a lot of pretrial research on a wide variety of cases but one of the most popular formats is one some of our clients call “the one where Doug channels Oprah”. No, he doesn’t wear a wig or even heels.
Nothing could be more classic than hindsight bias. And we always get questions on how to manage it effectively. Here are some ideas from an experienced litigation consultant.
Are there times you should talk about your case in voir dire? Here are some ideas on how to get jurors comfortable, get them talking, practice your timing, and discuss damages from a trial consultant who also happens to be an attorney.
Okay. So this one isn’t a classic! It’s brand new. But, destined to become a classic! And free which is why it’s our newest Favorite Thing. See videos of sessions from ABA’s 2012 National Symposium of the American Jury System: The Optimal Jury Trial.
“A picture is worth a thousand words”. Most of us think pictures are more persuasive than words. Recently I ran across a sentence in an article saying “it’s commonly believed that we remember 20% of what we hear and 80% of what we see”. Or something to that effect. I don’t know about you but I don’t remember 80% of anything I hear or see and I have a pretty good memory. So I went to our trial consultant email list and asked who could tell me if the statement was supported by research for which they could identify a citation. Immediately, I began to get information from visual consultants.
The classic study in the field was from something called the Weiss-McGrath Report and it did say that we retain more in memory from pictures. In fact, the widely propagated [untrue] statement from that research was that there was a 650% increase in information retention by jurors when oral and visual evidence are combined. Wow! No wonder it is so widely cited. Too bad it isn’t even a little bit true [see pages 27-30 of the linked pdf for explanation]. Shortly thereafter, Ken Broda-Bahm wrote in to say that the study was quoted very often but was in fact misquoted and pretty bogus and based on an undocumented 1856 reference. (That isn’t a typo. We really mean 1856.) We were referred to Ken Lopez’ blog post examining visual persuasion. Finally, Laura Rochelois came to the rescue. She recommended we look into a book written in this century (2009) by Richard Mayer.
Mayer’s book is an academic text but there are myriad posts online reacting to Mayer’s work. Among the search results, we found chapter-by-chapter summaries in pdf format online at Michigan State University. Another nice resource is a 20 minute video interview with Mayer available on YouTube.
In part, Mayer says that it isn’t video or animation that results in learning. What results in learning is good instructional design and presentation. However, according to Mayer, optimal learning and retention is best when words and pictures are presented. Learning is increased between 64% and 121% according to studies Mayer completed between 1989 and 1996.
So the answer to the question about using pictures, words, or both? Not just pictures. Not just words. Both.
Richard E. Mayer (2009). Multimedia Learning, 2nd Edition. New York: Cambridge University Press. DOI: 10.1017/CBO9780511811678
We like to be entertained. But we tend to overlook frivolity when potential lawsuit damages are staggering. Yet perhaps we shouldn’t. We like visual evidence a lot. But we know there is often resistance to using light-hearted persuasion efforts in high-stakes litigation. These two examples, though, could be very persuasive. And because of that, they are important to watch.
The first is apparently a viral video hit called “Dumb Ways to Die”. It’s silly. It’s in pastel colors. It’s a cartoon. It has a catchy and repetitive tune with almost an earworm sort of quality. And ultimately, it’s a PSA about train safety.
It has a very serious message presented in a glib and entertaining way. It is memorable. As is this next video.
We do a lot of patent litigation as well as work on intellectual property issues. We’ve found an educational (although sadly dated) video by the Federal Judicial Center on the patent system is very useful for mock jurors. It helps them understand how the system works and introduces them to terms they will hear repeatedly. It would be terrific if there was a catchier, updated version of that video.
But we don’t have one for you! What we do have is a catchy and modern video (clearly not produced in an effort to educate in an unbiased way) on why software patents are unnecessary! In this easy to watch and understand video, Marginal Revolution writer and George Mason economics professor Alex Tabarrok argues for an end to software patents. It isn’t goofy like “Dumb Ways to Die” but it is cartoon-based and has a powerful argument (for freeware and open source advocates). We are not getting into the fray, but it’s worth watching.
The point of showing you these two, arguably frivolous videos is to illustrate how a good video can be both entertaining and informative. You want jurors to remember your points. You want your arguments to make sense. You also want them to stay awake during the often dry and technical arguments of a patent or IP case. This style of video will both educate and entertain. Yes, it’s a risk. But so are dry and boring patent tutorials.
So, when confronted with the question of “which risk is worth taking for my case?”, it’s time to do some testing with mock jurors. They’ll tell you how to get the story across.
***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***