By Sherry Bragg
Business attorneys understand that complex business litigation involves complex issues, usually encompassing voluminous amounts of complicated financial data in the form of balance sheets, income statements, and cash flow summaries. It is certainly possible for jurors who own their own businesses or have accounting backgrounds to quickly synthesize financial information. However, most jurors are unfamiliar with this type of financial information and will find it difficult to comprehend, at best. A juror who is not able to understand the story that the financial data tells will be a less likely ally to your client’s position in the jury room. Thus, the biggest challenge for the business attorney is how to effectively present these complex matters to a jury.
The starting point of trial preparation in a complicated business case is to reframe the focus from how complex the case is to how you can go about simplifying the case for the jury. Should you start your opening by acknowledging how difficult it will be to digest all the technical financial data? No. You never want to start out by telling the jury how complex the case is. This will only cause them to be fearful of the case, be offended, or to simply tune out. Instead, you want to tell them a story that is familiar and relatable. Presenting your complex business case in terms of common themes will go a long way in making the matter more palatable and appealing to the jury.
Tell the jury a story. How would you describe the case to someone if you were at a dinner party? What happened between the parties that caused the conflict? What are the motives of the lawsuit? What is your client seeking? If you are asking the jury to award your client damages, why should they want to find in favor of your client, and in what amount? Telling your case in terms of a story makes your complex business dispute much more jury-friendly.
Once you have identified the appropriate theme or themes for your case, and have plotted out the story line, you will need to create the scenes by which you will tell the story. The scenes will involve not only the actors (i.e., the witnesses), but also the script (i.e., the evidence), and the props (i.e., the trial graphics). While the witnesses and the evidence of the case will be dictated by the particulars facts underlying the dispute, the creation of the trial graphics is where you, as the presenter of the story, will have an opportunity to showcase your creative genius.
The question is how do you creatively distill complex financial data into practical trial demonstratives to effectively communicate your client’s story to the jury? The first thing to keep in mind is that a demonstrative display of any kind has more impact on a jury than simply an oral description of the matter. Research supports the common sense belief that any mode of demonstrative display is superior to using no visual evidence to make specific points during expert testimony. See Weiss, H., McGrath, J.B. (1963), Technically Speaking: Oral Communication for Engineers, Scientists, and Technical Personnel, New York, McGraw-Hill; Binder, D.M., Bourgeois, M.J. (2004); Effects of the use of Power Point by expert witnesses, unpublished manuscript, University of Wyoming. This is especially true in today’s world of tech-savvy users, where most jurors have become accustomed to receiving information through digital media. A 1992 McGraw-Hill study, commonly referred to as the Weiss-McGrath report, found “a one-hundred percent increase in juror retention of visual over oral presentations and a six-hundred percent increase in juror retention of combined visual and oral presentations over oral presentations alone.” Thus, trial attorneys in all cases should start their trial preparation from the premise that today’s jurors have a greater capacity to understand more in-depth multi-media presentations and, in fact, may now demand trial graphics of greater quality and depth. The fact is that the use of video and computer capabilities in the courtroom expands a trial attorney’s options for how to present evidence; can assist in delivering large amount of complex information in a format that is familiar and acceptable to today’s population; and helps to keep the jury engaged in your client’s story.
The question then for the complex business litigator is not if she will use trial demonstratives, but how she can most effectively use visual and other sensory aids at trial to successfully engage and educate the jury so that the client’s story will be understood and accepted. Remember, the need to tell a compelling story to the jury does not disappear just because a case involves complex financial data. In fact, the task of explaining to the jurors the meaning of the data in a clear and engaging manner that helps them understand the case themes and supports the case story becomes that much more important in cases involving complicated financial material.
The following 4 step process is one way to develop effective trial demonstratives:
The design of effective trial demonstratives can seem daunting in the face of years of financial records. Once you have identified the case story, how do you decide what data best exemplifies your client’s contentions, and how do you reduce that data into meaningful graphic representations for the jury? Consider the best mode of delivery for your exhibits: electronic, foam board, or hand-written on an easel. A mix of electronic and print exhibits often works well to keep the jury’s attention. If possible, you should collaborate with your financial expert and trial graphics vendor early on in the case to strategize about how to effectively utilize financial data to present the case story graphically to the jury. Taking control of this task from the outset will help you to stay focused on the case story, and to move the case strategically towards trial.
There are several visual elements of the trial graphics you may want to consider to assist in keeping the financial information manageable while communicating the case story. First, think about the volume of financial data you need to present, and choose the most powerful visual to represent that information. If your records are limited, a modest chart with just a few rows and columns may be the most effective method of delivering the information. If you have more data, you may want to consider using color-coded pie charts or bar graphs to illustrate your data points. Don’t over-explain. Show only what is necessary to make your point. An effective method of presentation is to introduce the entire spreadsheet, and then call out only the relevant columns or rows of information needed to illustrate the point in a separate graphic. Use animation to gradually reveal the case story by calling up the relevant columns and rows on screen one by one. This adds a dramatic flair to the presentation and serves to engage the jurors in the story-telling journey. It can also be particularly effective when you need to refute the manner in which the opposing side has interpreted the data. In addition, make use of colors and highlighting to emphasize your key data, and to help tell the story. For example, use red to accentuate losses and green to show the positive income that should have been paid to your client. Finally, add common-sense labels where appropriate to focus the jury on relevant beginning and ending data points or other important details.
Another similar method is present graphics in a lecture-style presentation. For example, walking through an accounting to explain how a party “double-dipped” by mischaracterizing certain entries as fees when they were really profit can be accomplished by physically writing out each line item on an easel or using power point. Hand writing each line, one at a time, helps break the information into easy-to-digest pieces, versus introducing the information to the jury all at once or in a single slide. Interactive presentations like these can also help engage jurors, who are otherwise being presented with slide after slide of information.
So, what do you tell the jury about the case when you know that the financial information you will need to present to them encompasses 10 years of general ledgers, bank records, and cash flow summaries? Do you tell them that this is going to be a complicated business dispute that is going to require them to listen to weeks of dry testimony and comprehend thousands of pages of financial records? No. Instead, you tell them the story of how your client came to need their help, and how you are going to explore, together, the company’s own books and records to reveal the very misconduct that you have told them about. Then, because you have been thoughtful and diligent in creating your trial graphics, you will be successful at trial in utilizing your demonstratives as compelling visuals to help you tell your client’s case story.
Sherry S. Bragg is a shareholder with Weintraub Tobin with 30 years of litigation experience. She recently secured a $20.3 million dollar jury verdict in a complex financial dispute in Orange County, Complex Civil Court. Sherry can be reached at firstname.lastname@example.org.
Darrell P. White is an associate with Weintraub Tobin. His practice focuses on complex commercial litigation. Darrell can be reached at email@example.com.