Trial Presentations: What Jurors Expect from Both David and Goliath

By Dave Nugent w/ contribution from Sarah Murray, Trialcraft, Inc.

Sumo david_v_goliathWe trial graphics consultants often get the question, “Are we digging a Goliath hole for ourselves here with this presentation?” This question arises when attorneys fear that a sophisticated visual presentation could impress the jury as deep pockets bullying of a smaller party. Fourteen years ago, when I first began preparing courtroom presentations in an era of Elmos and flip charts, this concern may have been somewhat justified. Today, the concern has little merit.

I posed the David and Goliath question to Sarah Murray, a Fulbright scholar social/cultural anthropologist and founder, president and senior consultant at Trial Craft, Inc. I have had the great pleasure to work with Sarah on cases from small contract disputes to antitrust matters with international scope.

From Sarah’s years of esteemed quantitative and qualitative jury research, she has evolved a conviction that the David & Goliath fear is a fading myth, and contrary to the metrics of fact. As Sarah puts it:

“It’s 2014, and it’s hard to walk down the street in San Francisco without having someone bump into you because their eyes are glued to their iPhone. Students in my stepson’s high school no longer submit written reports in most classes; they deliver PowerPoint presentations. Airports, bars, hotel lobbies, waiting rooms in hospitals and doctor’s offices, sport LCD screens that are on all the time, 24/7. Most new cars come with TV screens built in.

Yet, still, I hear business clients say, ‘We don’t want to roll into town with fancy graphics and seem like the big, fat company against the little guy! We know that opposing counsel is going to use just flip charts and markers. We don’t want jurors to see us as the deep pockets with money to burn on things like graphics!’

LaptopLadyJusticeThis kind of comment reflects lawyers’ anxieties and biases—not the reality of what jurors expect or how they respond to sophisticated visual presentations in today’s courtroom. In my 15 years as a trial and jury consultant, I’ve worked on hundreds of mock trials and focus groups and dozens of trials. Time and time again, I’ve seen well-crafted graphics make the difference in a mock trial or trial outcome. I’ve talked to thousands of mock and real jurors. Again and again, I’ve heard jurors say things like this: ‘Well, the other side just didn’t seem as prepared. They didn’t have any good graphics; the lawyer was just shuffling around with a lot of papers and putting documents up. It was really boring and hard to follow.’”

Sarah’s research and experience is reinforced by two recent studies on the effects of visual presentations in a legal setting. Both the Park & Feigenson study “Effects of a Visual Technology on Mock Juror Decision Making” and the Persuasion Strategies Visual Persuasion Study found that opening argument visuals improved persuasion, jury recall and, most significant to this discussion, juror perception of the presenting attorney as being better prepared.

Most surprising to the researchers and of great consequence to potential courtroom success, the Park & Feigenson study revealed a juror perception of the media-supported attorney as being “more competent” and “more credible”.

Jurors now expect visual representation. Sarah Murray explains further,

“Jurors today—old and young—expect sophisticated visuals in the courtroom because they consume them every day in the rest of their lives—on TV news, on the Web, in business meetings and conferences and conventions, on YouTube and in the movies. If only one party has good graphics, they don’t judge that party to be wealthier and worthy of punishing; they judge that party to be better prepared, more respectful of jurors’ time than the other side.

The average juror has no idea what trial graphics cost—and rarely do they speculate about it. (They spend a lot of time, however, speculating about how much the attorneys are getting paid. If trial attorneys who are worried about paying for graphics really believe their fears, they should stay home from court and send a paralegal in their stead).”

media-exposureToday we have a new, visually literate and even media-demanding jury. Researchers at Ball State University’s Center for Media Design reported in 2009 that adults in the US are exposed to media screens of one kind or another on average about 8.5 hours per day! According to a 1998 Mind Tools report, a significant 65% of all people are visual learners.

In conclusion, Sarah counsels,

“Jurors are thirsty for good information to help them make what are typically difficult and complex decisions. Good graphics, like good trial themes and arguments, are like water. Thirsty jurors drink them and feel quenched. Unless given an explicit reason to do so, they do not attend to the source of the water or the cost of the drink.”

And for the attorney, whoever offers the more accessible and helpful presentation gains the advantage of being perceived as the more “credible” side—the juror expects both David and Goliath to come prepared.

Biting the Bullet – Excessive Bullet Points Don’t Work – And Here’s Why

jury_bucks editedWe have all read the many litigation community blogs and articles that warn about “Death by Bullet Point” text presentations. Numerous Government, Education and Cognitive Psychology studies have statistically shown that Visual Presentations – oral presentations with supporting graphics – enhance audience engagement and memory retention by 30% to 65% over bullet point text or unaided oral presentations.

But why? Understanding the mental mechanics of how a juror processes & retains visual information can better inform a trial team on how to most impactfully design those visual aids, individually and collectively. A rigorous 2009 study by Cognitive Psychologist Dr. Chris Atherton finally gives us the answer in neuro-processing terms, to the end-effect on the juror, and why you want to cut down on those bullet-lists and rely more on graphical presentations to best imprint and compel your argument.

Sharing the “Cognitive Load”

Dr. Atherton conducted an extensive study on “The Effects of Visual and Auditory Presentation on Cognitive Load”. She compared two audience groups, of whom each were presented with the same presentation content, but with different presentations modes: One she called the “Traditional PowerPoint”, with reliance on text descriptives, bullet-point lists and only the occasional diagram or other graphic; The second presentation she called the “Sparse Slide”, with the same diagrams and graphics, but sparse on text. The oral presentations that accompanied each PowerPoint were essentially the same.

Cortex-Brain_smallTwo sensory-processing areas of a viewer’s brain were at focus in the study: One, the Auditory Cortex – the functional area for processing spoken and written words, and; Two, the Visual Cortex – the functional area for processing visual/graphical information.

The results: Dr. Atherton found that the rate of both long and short term information retention was roughly double among the “Sparse Slide” viewers.

Doubling the retention rate of jurors would make for a huge advantage. But again – How and Why?

Too Many Hats To Wear for One Cortex

ManyHatsPix editedDr. Atherton theorizes that the “Traditional PowerPoint”, a text-heavy presentation, is a cognitive bullet(point) to the Aural Cortex. Though text is visual, the human brain relies on the Aural Cortex to process written, as well as spoken, language. So when the decision-maker is simultaneously reading and listening to most of the information at hand, that decision-maker relies solely on the one single cortex to do all or most of the heavy cognitive lifting. The “Cognitive Load” is too heavy for the over-taxed cortex to handle. Result: Impaired processing and lower retention.

With the “Sparse Slide” presentation, the viewer is listening to the speaker with his/her Aural Cortex while engaging the Visual Cortex for the processing of the visual, graphical content – dual processing – dividing up the “Cognitive Load”. It should also be noted that we humans process graphical visuals 60 times faster (!) than information processed with the Aural Cortex (spoken word and text).

While sharing the cognitive load between two cortices, the “Sparse Slide” viewer’s mental acuity lasts longer and processes the collective information far more economically & accurately. Attention holds. Retention is higher. As Dr. Atherton puts it, “Farming out tasks to separate (neuro) pathways buys more processing power.”

Summation: A bullet-point/text over-loaded Aural Cortex makes for an at-risk juror. While a brain firing on both cognitive pistons – viusally and aurally – makes for a mentally fresher, better-informed juror.

Persuading the Cro-Magnon Mind – Juror “Information Overload”

By Dave Nugent

Why is it important that a trial attorney understand the retention capabilities of his jurors’ minds? Consider all the information a juror is confronted with over the course of a trial: jury instruction; defense and plaintiff argument; expert & witness testimony; cross; demonstrative content; exhibits; etc. In complex matters, it is vital to know how much the juror can absorb, how much (s)he can accurately retain to memory and how to hone, exemplify and filter your argument accordingly … to assure survival of key information to deliberation.

cro-magnonartclassThe brain that we are born with today is almost identical to the Cro-Magnon brain of forty thousand years ago. This same brain that once could focus, without distraction, on painting beautiful animal figures in Lascaux Cave is today regularly tasked and multi-tasked with taking in greater volumes of complex information.

As a direct neurological descendent of the Cro-Magnon, how much information can a juror take in, retain and make sense of in deliberation? Not all that much, argued Psychologist George Miller in his paper “The Magical Number Seven, Plus or Minus Two”. In preparing your case argument and visual presentation, Miller’s conclusion is one key bit of information to retain.


Working memory temporarily stores and makes sense of information to solve complex problems, including language and – most importantly for our purposes here – oral & visual instructions. We possess inherited, built-in limitations to our working memory – a “mental bandwidth”. Miller posited the number 7, plus or minus 2, as the average number of pieces of information that our working memory can retain and work with simultaneously.

Brain-Open_IdeasResearch at Temple University – utilizing MRI technology – showed that as the brain processed information, the pre-frontal lobe (your “make sense” center) lit up, as it should. But when presented with increased amounts of information, it “went dark” – activity stopped. In short: too much information caused brain freeze. If our “Post-Magnon” juror is presented with argument points in excess of Miller’s seven pieces of information at any given time, his ability to retain information and make decisions breaks down – he suffers “information overload.”

“A good story cannot be devised; it has to be distilled.”   Raymond Chandler

Less is better. When strategizing your argument, try to break any theme or subject point, or an overview of your argument, down to 3 or 5 key points to compose your story. All other facts and events need be sub-theme and foundation. Make it easier for your decision-makers with a conclusive statement like, “If you remember just one thing, let it be…

“Simplicity is the ultimate form of sophistication.”   Leonardo da Vinci

Successful design of your supporting trial graphics requires the same respect for your juror’s cognitive capacity. For example …

For timelines, events need be limited to the theme or argument made by that timeline. Normally, 3-6 key events are the maximum focus for any timeline to take on (unless the point of your timeline is volume or repetition), and those should “pop out” visually from the other plotted events. Additional events need be necessary contextual support or help show causal relationships, motivation, etc. Resist the impulse to qualify and embellish – that, the presenter should do orally.

Master Timelines often end up using the “kitchen sink” content inclusion criteria. Display only the key story-argument points and events … leave the drill-down themed detail events to separate sub timelines.

“Take your audience out of the puzzle-solving business.”   Edward Tufte

Graphs, charts, tables and illustrative slides need to be designed for juror comprehension within 3-6 seconds. Multi-tasking slides require jurors to sort and multitask … and studies show this is not a skill of modern man, contrary to popular myth. If you need to explain your demonstrative – it’s not working.

Clearly, avoiding information overload to keep your juror’s pre-frontal lobe a smooth-running, but unburdened, data-processing machine will greatly increase your chances of imprinting that juror’s memory with key favorable impressions. That in turn leads to sound jury decision-making and obtaining the results you desire.


Reference: George Miller, The Magical Number Seven, Plus or Minus two, 1956. Torkel Klingberg, The Overflowing Brain, 2009.

Focus Group Testing Your Trial Graphics – The Proof Is In the Pudding

By Dave Nugent w/ contribution from Sarah Murray, Trialcraft, Inc.

Scale-manWhy test your planned trial graphics in a pretrial focus group or mock trial? The benefits go beyond the valuable feedback on the graphics themselves.

Without these visual aids, pretrial Focus Group breakout sessions often frustratingly reveal interpretive mutations of oral argument as jurors try to recall heard information, and then seek to make sense of what they partially and even inaccurately recalled of that information. Multiple studies have revealed that our brains retain only about 10% of orally delivered information (see the UM/3M 1986 study and the USDoL/OSHA 1996 report, among others). So not only is retention constricted, but juror comprehension necessarily then turns “creative” – a bad thing.

In short – testing the visuals not only helps the Jury Consultants & Attorneys assess the effectiveness of those demonstratives, but by raising juror retention & comprehension, they help provide a more accurate testing & assessment of the overall argument’s strategic viability – you get a better read on the likelihood of juror resonance and outcome.

Whisper_Secret watercolorOn the pitfalls of oral-only retention, I am reminded of an exercise I witnessed in my son’s 5th grade classroom, where a 2-sentence statement was started at one end of the classroom, and passed along, student to student, via cupped hand whispering, until it finally reached the last student. Even though each student tried faithfully to recite the 2-sentence “story” exactly as they had heard it, its final interpretation was nearly unrecognizable from the original two sentences!

Two useful factors emerge as to why those students each lent a hand (or neuron) to reinventing the oral information they were tasked to faithfully pass on: (1) working memory can only handle a limited amount of information before breaking down, particularly when received via only one sensory mode – here listening – and; (2) comprehension (and persuasion) is directly proportionate to retention – duh.

Sarah Murray, a Fulbright scholar social/cultural anthropologist and founder, president and senior consultant at Trialcraft, Inc. (Berkeley, CA) weighs in with research-backed conviction. “The benefit that good graphics confers is so great that my team and I insist that in any mock trial, there be as good a graphics presentation on the opposite side as on our client’s side – because otherwise, the result is skewed towards our client’s side, lessening the usefulness of the results.”

“The process of doing what I call “thinking through the eye,” imagining what jurors need to see at trial as well as what they need to hear, is as important a part of using and testing trial graphics as is the final product of the graphics themselves. In fact, it is more important – because it is this process that forces the minds of the trial team to consider where a well-crafted graphic can distill an image that conveys in a glance a point that would take 30 minutes to present in words and argument. It forces the trial team to think about where their case depends on understanding things that are just not best conveyed in words.”

Courtroom Illustration copyWe have all read and know of the more commonly asserted value-points to using good presentation visuals. But well thought-out presentation graphics can have other critical narrative uses to help shape your story.

Framing your argument:
Trial graphics should be conceived of and tested with the goal to help you best frame your story – what comes first, what second … There may be the revelation that one key graphic need “set the table” for subsequent information (visual or oral), and the usefulness of that graphic may actually help determine the presentation order. If not tested before trial – you may not learn of this strategic advantage.

Key cognitive “bookmarks”:
For the juror, key demonstratives help them imprint your case story into key visual narrative points. 65% of all people are visual learners. With these graphical bookmarks imprinted in the jurors’ memory, a more comprehensive retention of your story can extend its life into jury deliberation.

Sarah Murray sums this up well, when she adds, “Crafting good graphics is hard and takes time. It should support and be consistent with everything that the attorney or witness will be saying. It should be easy to take in at a glance, but it should also reward repeat viewing. It should allow the fact finder to have the experience of seeing something important for him or herself. This is why most of the work of creating graphics is not in drawing pictures and picking colors. Most of the work is in distilling your case down, in a mock or focus group setting, to its essentials and figuring out what you really need to convey – and nothing more — to win your case.”

The trial graphics vetting process that Sarah speaks to is best exercised in the Focus Group and Mock Trial. Like my southern great aunt told me many years ago before a Thanksgiving dinner, “I don’t even serve pudding unless I’ve first tried out the ingredients on my grand kids.”