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