Naïve Realism, Your Jurors & Trial Graphics


“Who are you going to believe – me or your own eyes?”

                                                                        – Chico Marx

You may guess correctly as to the majority response to that judgment-testing tease, but research shows that your preferred inclination may be a debatable conclusion.

And so was my thought, after once witnessing a juror in a mock trial deliberation bark at a fellow juror, “Come on, you saw the video. It’s only common sense that he is guilty!” Several around the table nodded their heads. The only problem with that assertion was that the video showed the accused with his colleagues in a storage container, sorting inventory. There was no offered evidence that that particular inventory had been stolen or was illicit in any way – as was the charge against the defendant. My curiosity into the juror’s conflation of “common sense” with visual evidence was rekindled when I read Neal Feigenson’s excellent essay, titled “Visual Common Sense”.

Neal Feigenson is the Associate Dean of the School of Law at Quinnipiac University and has long held a research interest in the use of Visuals in the Courtroom. His work is must-read for any litigator or trial graphics consultant interested in the litigator-visuals-juror persuasion relationship.

Naïve Realism – “Seeing Is Believing”:

Feigenson’s own research, and his understandings of related research, supports his argument that a particular common sense attitude – naïve realism – toward visual representation of evidence, tends to make many decision-makers overconfident in their interpretations of that visual evidence, and less receptive to alternative viewpoints or even the introduction of contrary evidence.

By “naïve realism” Feigenson means people’s tendency to identify a visual that looks like – or affirms as – ordinary observable reality. This could be a video, an animation, a photo, a graphical analogy, a timeline or even data graphs & charts. Other possible relevant facts or contextual detail that may be omitted from the depiction are not considered, if that visual depiction is easily understood, and thus resonates with “common sense”.

justicepeeking_-sketch-squashedIn an age of Photoshop and YouTube, one may think that people in general have become sophisticated consumers of visual information. But even in our relatively visually sophisticated culture, naïve realism about the truthfulness of visual information engages a common and psychologically powerful mental default.

Research shows that well-received picture-based understandings can convince affirmation of the viewer’s contextual perspective and end any further reasonable dispute. The sway of visual naïve realism, like appeals to common sense, tends to be a conversation-stopper for some decision-makers. It ends discussion on the grounds that the visual “speaks for itself”.

Justice Scalia & “Visual Common Sense”: A Case Study:

Neal Feigenson points to a Supreme Court majority opinion by Justice Antonin Scalia in the matter of Scott v. Harris (2007) as an exemplary exercise in gauging the possible effects of “visual common sense”. One late night in 2007, Victor Harris led Georgia county police on a high-speed chase. After some time, a pursuing officer decided to ram Harris’s car off the road, causing Harris to crash. As a result, Harris became a quadriplegic. Harris sued the county and officers in federal court, alleging violation of his Fourth Amendment right with the use of excessive force. The defense was of course that Harris posed enough of a threat to public safety to justify the officer’s actions.

When a question of reasonableness of conduct is in dispute, it’s up to a jury to decide the case – both the trial judge and Court of Appeals agreed. But eight of the nine Justices of the Supreme Court disagreed. They ruled that there would be no trial, as “any reasonable person” would have concluded that Harris’s driving posed such a risk that police were justified in their action.

Why did the Justices believe they should decide a question ordinarily left for a local jury? Because they watched scott_v_harris-squashedthe chase as recorded from two dash-mounted police cruiser cameras. In the Justices’ opinion, the video outweighed other evidence, including sworn testimony of officers and witnesses. They had the tape.

Justice Scalia, responding to the lone opposing Justice, wrote for the majority, “We are happy to let the videotape speak for itself.” Feigenson questions, though, does the videotape “speak for itself”?

frenchconnectionScalia wrote that “what we see on the video … resembles a Hollywood-style car chase … at speeds that are shockingly fast.” (Scott v Harris 2007, 379-80)”. He later invoked reference to the movie ‘The French Connection”, to support his reliance on the videotape to reach his conclusion.

Feigenson points out that there are many “memory-imprinting” differences between Hollywood style – and The French Connection in particular – chase scenes, with vehicles jumping curbs, side-swiping other cars, near-misses of horrific collisions, etc, and with the police tapes in evidence. That actual evidence – the police dash video – shows none of the Hollywood mayhem. Harris drives fast, yes (but also consider that most dash-cams use wide-angle lenses, which because of their spacial distortion, make movements across space appear even faster than they are), but he appears to be driving in a very controlled fashion, even signaling his turns, with no near-collisions and no vehicle forced to swerve to avoid him.

Feigenson ponders whether the cultural contextual references that Justice Scalia invokes might have influenced how and what he believed he saw in the police video? A lower and appeals court, and one Supreme Court Justice, did not see what Scalia “saw”. Yet Scalia argued “the videotape speaks for itself.”

Feigenson argues that Scalia’s interpretation of the video evidence, central to his “obvious” conclusion, suggests a naïve realist’s perspective: that the visual unproblematically conveyed ”the real”, even though that “real” may have been, at least in part, shaped by his own cultural influences and biases, rather than objectively critiquing the evidence before him.

“Keep It Simple, Stupid” & Naïve Realism:

When planning the visual presentation with trial teams, I often speak to Edward Tufte’s advice to “Get your audience out of the puzzle solving business”. More easily understanding visual evidence generates decision-maker confidence in their judgments of that evidence, especially with naïve realists. If it appeals to one’s common sense, it is compelling.

Believing the truthfulness of our own visual perception is intuitive: The brain processes pictures 60 times faster than it does words! Intuitive visual judgment “feels right” when presented simply and accessibly.

Consequently, studies reveal that when people find it easier to understand a visual, as opposed to a verbal description (which more often is the case than not), they would be more inclined to like that visual over the verbal account, and more likely to believe it more truly represents reality – an important persuasive bonus. Naïve reality viewers would hold this belief with added confidence.

Egg-IncubationCognitive and social psychology studies have shown that the easier it is for people to mentally process something (quick fluency), the more they tend to like it (Winkielman et al. 2003) – and subsequently, the more likely they are to believe that it is true (Reber and Schwartz 1999). They unconsciously misattribute this positive inner reaction to the visual they are processing, producing a more favorable acceptance of that visual. The good feel of fluency influences truth judgments.

Furthermore, studies reveal that the easier it is for people to retrieve information from memory, the more confident they are that their retrieved answer is correct. Meaning, many people mistake memory accessibility of information for truthfulness. Consider these points above when devising your next set of trial graphics, and how best to arm your favorable-leaning jurors for deliberation. Keep it simple & accessible.

When strategizing & identifying your deck of demonstratives for your next case, serious consideration of how to display, as well as what to display, needs to be on the table. Neal Feigenson’s observations on the mechanisms of juror tendency towards Naïve Realism should be kept in mind to help achieve maximal persuasion with your jurors. Simplicity, accessibility and quick fluency are key. These trial graphics design attributes help to engender a juror’s “truth judgment” with the content you wish to convey.

If “seeing is believing”, then visual evidence offers the best foundation for juror persuasion – and belief.


Source: (2014) “Visual Common Sense,” Neal Feigenson, chapter 5 in Richard Sherwin & Anne Wagner (eds.), “Law, Culture, and Visual Studies”, pp.105-124.

Mental Coupling: How A Good Story Links Attorney to Jury


“The shortest distance between a human being and Truth is a story.”

                                                                              – Anthony de Mello 

Storytelling is a powerful medium. But understanding just how storytelling effects a juror’s mental processes is even more empowering when crafting your case presentation.

Every litigator knows a good story is essential for presenting a compelling case argument. Jurors respond to a well-crafted story. Story helps jurors to mentally organize the presented facts of the case into a sensible, engaging narrative, as well as trigger familiar contextual associations that may arouse sympathy for the presenter’s side.

But cognitive psychologists and neuroscientists have revealed that what makes a story “captivating” to an audience involves a much deeper & more powerful mental interaction between speaker and audience. Good storytelling doesn’t just grab attention or influence imagination, it quite literally effects the listener’s brain on a neurological level. Scientists monitoring the brains of both storyteller and his/her audience have documented an amazing dynamic: the listeners’ brain activity begins to mirror that of the storyteller. The listeners’ neurons fire in the same patterns as the speakers. This “mirroring” brain activity also occurs among the multiple listeners. Neurologically – every one is on the same page. This is the phenomenon of mental coupling.

The purpose of the human brain, described in its simplest function, is to: 1.) take in sensory information; 2.) recognize patterns in that information, and; 3.) make assessments or predictions based on those recognized patterns. Through storytelling – and stimulating mental coupling with the audience – the storyteller can better inform and guide the cognitive processes of that audience. “Recognizing patterns” is accentuated via your well-crafted story and the triggering of mental coupling. The story told is processed in each listening brain in mirroring fashion, but each brain experiences the elements of the story as their own ideas and visualizations.

That’s a powerful tool to understand and apply.

When processing facts, only the Broca and Wernicke’s areas of the brain are engaged. This minimal neuro-engagement occurs when viewers are presented with a typical text-based PowerPoint. FMRI studies show that Mental Coupling_Wavescouching those same facts in a good story lights up multiple other areas of the brain as well. Story can put the whole brain to work. The brain responds as if the story events were happening to it. This is important when understanding that some jurors may be strong in fact processing, yet others are not. Both groups benefit from the story. But the resultant mental coupling, with the activation of additional brain faculties, can help cognitively weaker jurors absorb and retain the facts in a meaningful way.

A well-told story can have another powerful and complimentary effect on the listener’s brain. A good story can release increased dopamine into the system. Dopamine enhances the brain’s ability to focus and for longer periods of time, and to better retain information with greater accuracy – information you likely want the juror to recall with clarity & purpose in deliberation.

And storytelling can further change the brain’s chemistry. When captivated by an engaging story, the brain produces oxytocin, a substance known to increase generosity, compassion, trustworthiness, and sensitivity to social cues … a more highly receptive jury.

Courtroom IllustrationAnd while mental coupling enables each in your audience to experience the elements of your story in their own thoughts and visualizations, supporting that story with well-crafted visuals greatly enhances the juror’s assimilation of those story points and facts. The brain processes visuals 60 times faster than it does that of orally conveyed information (printed text as well as words). Providing a multi-sensory conveyance of the facts and story engages more “processors” of the brain. Speaker-listener synchronicity broadens across more faculties of the brain, with a more seamless and guided efficiency. The story becomes more sensory dimensional and better embedded in the juror’s memory.

Story is powerful. Mental coupling is the goal. Understanding this dynamic neurologically – why & how it works – will aid the presenting attorney in how best to craft & utilize story as a strategic tool. Because, after all, what is the best outcome of any good story for a litigator and the client, but a happy ending?

The “Grande Finale” Animation: An Exemplar Case Study


My client called it her “Grand Finale” graphic: The summation animation that would bring the whole of her argument, testimony & presented evidence together into one final and compelling, composite picture. Via it’s multivariate depiction of the total body of evidence, this animation became the collective “nail in the coffin” against the defendants in the case.

Background: In an antitrust matter, our plaintiff team were tasked to show that suppliers of a common and essential construction industry product colluded to change purchasing habits from an historic bid-based practice to a new non-negotiable fixed price, and uniformly set that fixed price non-competitively among the suppliers with periodic, agreed price hikes.

The Goal: The individual pieces of evidence were offered by my client during the course of presentation with the goal to link that sequence of evidence into a connected, meaningful story … but one can not assume the cognitive capacity of each juror to retain, assemble and associate that string of evidence into a clear composite picture of causation and collusion.

This “Grand Finale” animation answered the problem: How to best imprint in the jurors’ minds the over-arching, composite story that the individually presented body of evidence infers?

“Get your audience out of the puzzle-solving business.”

                                                                                    – Edward Tufte

The Solution – Compose multivariate content (2 or more quantities of information) and multi-dimensionally (time, quantity, degree, etc): In summation, the animation first quickly re-reviews & compiles all of the previously discussed key evidence into meaningful categories. Key pieces of evidence re-appear on the screen, then transform into color-coded icons which then flow into, accumulate and build each category silo, to readily show the full quantity of evidence for each of those categories. With this sanitized version, we have reduced the number of pop-up evidence to just a couple exemplars.


Click on image to launch full & functional ‘Grand Finale” animation.

At the end of the re-review and quantifying of all evidence into category silos, the totality of evidence against the defendants can be appraised by the decision-makers.


Click on image to launch full & functional ‘Grand Finale” animation.

Show Cause & Effect: With the building and quantifying of evidence complete, the accumulated evidence icons flow out of their respective category silos and plot themselves on a time bar. With the evidence plotted in this new temporal context, the story of complicity and causation is not only made clear, it appears obvious. The plotting of the defendant communications and actions on the time bar visualize their direct causal effect on the subsequent happenings – the uniform price-setting, agreed among the manufacturers.


Click on image to launch full & functional ‘Grand Finale” animation.

The “Grand Finale” animation convincingly conveys what otherwise a sequential presentation of the evidence alone may not accomplish – an engaging composite picture of the total body of evidence as a single, viewable “visual story” – both quantified and illustrating causation. When left to their own mental devices, the decision-maker may not be able to sort through the evidence and assemble a plausible story. It was our job to visually compose that story for them – to help assure informed decision-making and a successful outcome.




What Einstein, Aristotle & Dali Can Teach the Creative Litigator


Albert Einstein, Aristotle and Salvador Dali advocated for it. And recent scientific studies have confirmed that this mental state – and the resultant cognitive power of that state – can help litigators more fully excel at their craft. Those who study this optimal mental acuity call it “incubation time”.

Egg-IncubationTrial attorneys are very well schooled and hone immeasurable career experience into stellar case analysis, strategy formulation and presentation acumen. As they dive further into trial prep, attorneys bring to bear an intensive, 24/7 work ethic with all-consuming focus. But recently the fields of both Neuroscience and Psychology have identified an inherent neuro-means of maximal creative and analytic benefit, a means that many attorneys may find counter-intuitive to becoming more strategically adept at their art: Mental Incubation Time.

Make an empty space in any corner of your mind, and creativity will instantly fill it.  –  Dee Hock / Founder & former CEO of VISA

Conversely to the ardent focus on diligently & incisively working out brilliant stratagems, quality incubation time involves mental relaxation, “chilling out”. A Buddhist would call it “quieting the mind”. Studies in Neuroscience and Psychology confirm mental relaxation – incubation – is an optimal creative state of the mind that allows that mind to do what it has evolved to do best – recognize patterns and associations.

Neuroscientist Alice Flaherty at the Harvard Medical School points out that the byproduct of a relaxed state of mind is an increased release of dopamine. Dopamine is a powerful neurotransmitter. More relaxation makes for more dopamine. More dopamine makes for more creativity. Why?

nueral pathways _squarePsychologist John Kounios of Drexel University explains that our brains have evolved to catalog all in-coming information by context – the perceived relationships among all stored data. Most simply stated, the fundamental operation of the brain is to 1.) take in information and 2.) recognize patterns among that information. Our neural pathways linking the cataloged information are formed by these associative connections. Over 1,000 new pathways form every second. Yet when we focus and apply ourselves to a task, we tend to think linearly, shutting out our default mental aptitude to recognize potentially revelatory, associative connections or lines of inquiry.

Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn’t really ‘do’ it, they just saw something. It seemed obvious to them after a while.  –  Steve Jobs / Founder & Former CEO of Apple

Published in July of 2013, this recent large review by Cognitive Psychologist Rex Jung and colleagues provides an insight on how creative cognition might function. Their review suggests that when you want to unbridle your possible mental associations, allow your mind to roam free, imagine new possibilities, and (most importantly) silence the inner critic, it’s good to reduce activation of what cognitive psychologists call your “Executive Attention Network” (but not completely) and increase activation of the Imagination and Salience Networks. This is where incubation comes in as a beneficial working tool.

topbrain_615 editedDopamine is the litigator’s friend. During a period of relaxed, mental incubation, increased levels of dopamine fires up those neural pathways that link the billions of associative bits of knowledge and memory, seeking – and finding – meaningful patterns that the linear thought process did not. Dopamine triggers an unconscious, yet powerfully analytical, mental process.

We have all experienced or heard the anecdotes of revelatory moments – when, while out for a run, cutting veggies for dinner prep or sitting under a Bodhi Tree, an “Eureka!” moment strikes. Dr. Flaherty and Dr. Kounios would recommend going a step further, to purposefully building “unconscious thinking” into your work process – incubation time. At intervals, divorce yourself from the task, relax and let your dopamine-charged neural pathways mine for valuable associations and new lines of inquiry. It’s robust investigative teamwork harnessed inside one already sharp mind.

Visual Story Telling: Four Key Principles in One Exemplar Slide

“The shortest distance between a human and truth is a story.”
– Anthony de Millo

Every litigator knows that jurors respond to a good story. Facts and Story – one gives credence to the other, prompting persuasive resonance with the juror.

But when strategizing trial demonstratives to help convey the facts of the story, often this same rule of thumb is ignored: When devising a key trial graphic, story is everything. Data, especially, needs to be conveyed via a clearly discernible story.

An Exemplar Case Study – The Four Key Principles of Visual Story Telling: The below graphic was crafted for a defense client accused of breaching an oral agreement with a fellow developer. The two were initiating adjacent, remote developments in 2004 and opened discussions around sharing of infrastructure costs that would serve both projects. But soon after those discussions, the economy wilted and the housing market crashed. Our client wisely mothballed their project while the other party blithely plowed ahead with building, placing new housing on a very dubious market. The plaintiff, our defense asserted, then sought to recoup subsequent losses through litigation.

To lay a contextual story foundation for the jury to better – and favorably – interpret the events of the dispute, our team sought to display expert data on 1.) changing home sales prices for the region over time, and; 2.) changing sales volumes in the region over time. A timeline of events also offered key, related information for this graphic. Here is what CaseArt came up with:

Scatter Chart-Timline smallerThe resultant scatter chart/timeline shown above serves as an effective exemplar for how to employ the four principles of good visual storytelling for maximal persuasive effect – principles garnered from my 15 years of experience & informed by the sage precepts of design guru Edward Tufte:

1. Compose content multivariate (2 or more quantities of information) and multi-dimensionally (time, quantity, degree, etc)

“It’s better to have information adjacent in space than stacked in time.”
– Edward Tufte

“One slide, one point”, is the primary rule of thumb in trial graphic design. But when several sets of data, when combined, reveal telling associations, and only when considered together can they assert that one key point, it is better to compose those data sets into one clean slide than to display them (and discuss them) sequentially to a jury. Sequential display, over several slides, challenges a juror’s cognitive and working memory capacity to reconstruct in his/her mind those disparate, individually displayed sets of information, and then link any relationship between them. Comparative information sets need be positioned within the eyespan, so that viewers make comparisons at a glance, as Tufte advises in “Envisioning Information”.

The above graphic, while combining multivariate information to make its point, also does so multi-dimensionally, bringing temporal, quantitative and qualitative (sales value) information into one cohesive and accessible “visual narrative”.

2. Integrate words, numbers and images sparingly

The graphic’s message, a composite of varying sources, is quickly and uniformly understood by the viewer. That is in part because of the clear relationships of those info sets when juxtaposed, but those relationships are better recognized because of the sparse and quickly absorbed composition. Text is used sparingly. Of the many proposed timeline events for a master timeline, only key events with a stark causal relationship with the data are included here.

3. Make Comparisons

The “sub-story” of the downward trend of the housing sales plot points (both volume and value) is clearly and quickly recognized, providing contextual meaning to the timeline events occurring below. Without the comparison to the graphed data, motive for the timeline events is broadly and dangerously interpretive. Conversely, without the timeline events, relevance of the housing data to the facts of the case are not obvious. But juxtaposed together – they tell a story.

4. Show Cause & Effect

With this visual juxtaposition of data and events, causation becomes clear. Motive for the ensuing events is not only established, but for the defense, imbued with the understanding of reasonable and acceptable action. Conversely, motive for the plaintiff actions seem irrational in light of the market data.

A second “bonus” cause and effect is also inferred with this juxtaposition: That the parties – and the jury – were in court that day only because the plaintiffs acted with imprudence, if not recklessness, and then sought to recover from their ill-advised actions with a frivolous lawsuit.

You ask your jury to engage in quantitative reasoning. Quantitative reasoning is based on the query “compared to what?” Applying these four visual storytelling principles to your trial graphics will help guide your decision-makers to a favorable answer to that question.

Trial Graphics: Visualizing a Juror-Familiar Context to Convey Arcane Concepts & Data

“That’s one small step for man, one giant leap for mankind,” proclaimed Neil Armstrong as he became the first human to walk on the earth’s moon. Neil travelled 240,000 miles to then step out onto the lunar surface and take a short lunar hike. But how far did he walk? How do we understand the scope of his achievement? Though we all saw the images of Neil’s moonwalk, viewer orientation was poor.

But thanks to the smart (and fun) spatial-comparative graphic made by John Mark Boling of the US Geological Survey Department, Neil Armstrong’s (and fellow astronaut Buzz Aldrin’s) range of lunar-pedestrian traipsing can be quickly understood by the general viewer. Mr. Boling layered a typical baseball field, to scale, beneath a mapping of Armstrong and Aldrin’s landing site for viewer-familiar orientation.

Moonwalk_Baseball It’s an “ah-hah!” moment.

The beauty of this graphic is in its conveyance of significant factors with simple immediacy of recognition, where otherwise seeing only a moonscape would leave the viewer with no means nor markers from which to understand scope, scale and distance … data “lost in (unfamiliar) space”.

Equally so, trial and ADR demonstratives need to bring argument points and data into the realm of the familiar for the viewer. By providing a juror-familiar context, trial demonstratives can help clearly communicate arcane concepts or complex sets of data critical for informed decision-making.

In one case, our client, seeking approvals for their development, were initially tasked by the local municipality to build the water run-off management system for the immediate development area. As negotiations continued, that municipality vastly increased the area for which the developer was tasked to accommodate, exponentially increasing costs.

Imagine trying to orally convey water volume information to a jury, even with the help (or complication) of the expert’s tables of data. The significance of the total acreage + water run-off volume information would be lost on most jurors without this visual rendering.

HeidiCase Watershed Slide This interactive demonstrative effectively converted that expert data of increasing, mountainous acreage and accumulating water run-off to a topographical 3D map model, functionally able to tilt, rotate and change perspective, allowing the jury compelling views of the magnitude of the extensive terrain and communities for which our clients were being solely burdened to provide infrastructure. The familiar context here for the juror is the tangible physicality of the geography, terrain and spatial dimensions, as opposed to a juror mentally trying to translate data tables, graphs and numbers into meaningful comprehension.

In an insurance/contract matter, our client discovered that the entrusted recording of acquired development property had been erroneously executed, omitting roughly one half of that property. Not recorded and with no endorsements executed meant no insurance coverage for the subject lots. The resultant risk to our client was communicated to the jury spatially/graphically, to better convey the tract-map-3 framegravity of the problem in more tangible, physical terms. A vertical timeline on the right stepped through the events as the correlating consequences evolved visually on the aerial image. Besides graphically conveying the issue in a juror-impactful context, cause-and-effect is revealed between that graphic and the unfolding timeline events.

Going in the other direction of scale, the microscopic (or unseen) world presents challenges to juror understanding as well. For a past IP matter, an important question that needed to be answered was, “compared to what?” Scale and spatial comparisons help provide convincing, familiar context from which the juror can better apprehend the complex technology & accompanying issues, relative to his or her known world, and thereby help guide that juror to contextually informed decisions.

TransistorSize_Synopsys Here, the industry was microchip development. Understanding how micro is a transistor allowed jurors to better grasp the engineering solutions at issue. This screen grab from our animation revealed that transistors today are a fraction of the width of a human hair or red blood cell. Something most of us, not “skilled in the art”, do not empirically grasp.

Like the diagram of the moonwalk across a baseball field, these trial demonstrative examples provide viewer-familiar visual context for scale, comparison and scope – where without, the juror’s path to making an informed decision could be as tenuous as that first walk on the moon.

The Color of Persuasion – Strategic Use of Color In Trial Presentations

ColorPallette_ Long

The use of color in trial presentation design is becoming less an aesthetic choice and more a strategy of designed persuasion – to maximize a positive jury response to, and retention of, your argument. More than being emotionally persuasive, research reveals that color acts directly upon the brain’s potential for heightened cognition and retention.

Scientists and psychologists have made two related discoveries in separate lines of investigation: 1.)  Neurologists have shown that certain colors cause hormonal mental “arousal”, while; 2.) Cognitive Psychologists have demonstrated that the chemical changes in the brain from mental arousal can improve and increase short term memory retention. Current studies look to prove the logical extension of this 2-part equation: 3.) Therefore use of certain colors can improve and increase memory retention.

“Colors, like features, follow the changes of the emotions.”

                                                               – Pablo Picasso

Colors also lead the emotions and perception. By considering color psychology in demonstrative design, you can imbue your client with credibility and trust, send a positive or negative message, compel perceptive focus, assuage a dubious audience, or induce a juror to drop and do 20 push-ups (almost).

CamplesSoup SquareIt is no accident that Campbell’s soup has used the same four colors on their labels for decades. Our reaction to color is instantaneous and will “color” our perception of any subsequent information we take in.

In the early 1900s, Russian theorists performed color-motivated cognitive perception experiments, where the same photo of a person’s face was presented to different groups of viewers. For each separate audience however, the background color behind the face was different. When asked what the viewers’ impressions of the person were, the interpretations of that exact same face varied markedly from group to group, depending on the associated background color each group saw. But within each group – each seeing the same background color with the face the viewers’ “perceptions” about the person were more uniform (Lotman, Ann Arbor, Trans 1976).

“I can not pretend to feel impartial about colors. I rejoice with the brilliant ones and am genuinely sorry for the poor browns.”

                                                                  – Winston Churchill

Though some color effects are universal, colors may also have different meanings in different cultures and to differing age groups and genders, so when considering use of color – consider your jury pool. For example: If one projects a high percentage of female jurors in the pool, one should avoid the use of brown as a background or primary design color – brown is one of the least liked colors by women of any age group. Men prefer the color blue by almost 60%. And a jury with predominantly Southeast Asian heritage may respond differently to a red or yellow than one with a majority of white or Latino jurors.

“Memory is a crazy woman that hoards colored rags and throws away the food.”

                                                                    – Austin O’Malley

Color-Eye_NewStudies reveal that when images are viewed that use natural colors rather than unfamiliar tones, the images are remembered better (Jesky, 1985). And when one image was presented in two different versions – one in color and one in black & white – the group viewing the color version retained more information and for longer periods of time. Consider that point, next time you need decide between showing a raw, black & white document blow-up vs. creating a color, graphical demonstrative of the same content.

To avoid the risk of the jury cognitively “throwing away the food” that is the substance of your argument, a skillfully crafted visual presentation can help affect that jury to retain and carry your salient points to deliberation with clarity, wrapped in strategically “colored rags”.

The Telephone as Prior Art to the Electric Guitar?


The 1937 patent prosecution history for the first electric guitar strikes a familiar refrain for today’s IP attorneys, except where prior art claims trace back surprisingly to a 19th century long-distance oral communications invention.

171PatentFig1-3The electric guitar—the transmuted iconic American instrument that in turn helped transform FryingPan_fulljazz and blues music and later propel the rise of rock and roll—was recognized by the United States Patent Office on August 10, 1937 with the issuance to inventor G.D. Beauchamp of Patent #2,089.171 for an electric musical instrument known as the “Rickenbacker Frying Pan”.

What revolutionized the guitar and its importance in popular music was the innovative method for transforming the otherwise gentle sound of an acoustic guitar string into an electrical signal that could be amplified and re-converted back into audible sound at a much greater volume. A truly novel, non-obvious invention, yes? Not in the opinion of the US Patent Office.

FryingPan_MCUWhen a vibrating string is placed within a magnetic field, it is possible to “pick up” the sound waves created by thatBellPhone_Pix string’s vibrations and convert those waves into electric current. However, substitute the word “string” with the word “membrane” in that statement, and you also have a description of                                                                      how a telephone works.

With Alexander Bell’s 1876 patented “Telegraphy” identified as prior art, Beauchamp’s patent application had to be revised several times to render the patent claims truly novel and not merely an obvious, variant application of an existing prior invention – the telephone.

Inventor G.D. Beauchamp, partner with Adolph Rickenbacher in the Electro String Instrument Corporation of Los Angeles, California, spent more than five years pursuing his patent on the Frying Pan. Sadly for the Electro String Corporation, Beauchamp’s invention had in the interim been obsolesced by the innovations of his competitors, rendering his 1937 patent an item of greater historical interest than economic value.


The idea of Bell’s telephone as anticipating the invention of the electric guitar may seem at first blush like a discordant pairing to the casual observer. But this vexing patent prosecution anecdote could resonate more as an historical cautionary tale with today’s patent attorney.

Clear Thinking Made Visible vs the Challenger Tragedy – A Case Study


Bad graphical design can turn otherwise obvious statistical patterns of cause and effect into the visually arcane and confused. A profoundly tragic example of this is the frustrated attempt by NASA engineers to abort the fatal NASA Challenger launch of January 27th, 1986. But what can trial attorneys learn from this terribly sad case of visual miscommunication?

 “Good design is clear thinking made visible.”

                        – Edward Tufte, Yale Professor

                           and Information Design Guru

In information design guru Edward Tufte’s seminal publication “Visual Explanations: Images and Quantities, Evidence and Narration” (Feb, 1997), the visual evidence used in deciding to launch the Challenger is examined in careful detail.

A Case Not Made – A Plea Not Understood

O-Ring Damage_1Prior to the ill-fated launch of the January Challenger mission, NASA scientists and engineers were heavily concerned over the negative effect of cold temperature on the performance of the now notorious Challenger booster rocket O-rings. The temperature at launch time was projected to be 29 degrees (F).

NASA engineers tried to persuade their superiors to postpone the launch until temperatures were more favorable. To support their case to abort the mission launch, the two charts seen here were presented to the NASA decision-makers. The visual representations attempt to describe the O-ring erosion data.

O-Ring Damage_2Sadly, these charts did not dissuade the NASA senior staff from going forward with the launch. The charts reflected accurately accrued data. But unfortunately, the way that data was presented did not clearly illuminate the very real risk for catastrophy. They illustrated prior launch O-ring failures and where those failures occurred, but the charts failed to reveal a story of cause and effect, of the associative pattern between colder temperatures and increased incidence of O-ring failure.

“Get your audience out of the puzzle-solving business.”

                                                                     – Edward Tufte

Clarity, Causation and Story

To illustrate how good design may have compelled a different response from the NASA decision-makers, Edward Tufte’s redesign of that same NASA engineers’ data into a simple yet clearly designed graphic forcefully conveys the stark causal association between increasingly colder launch-time temperatures and the higher incidence reports of O-ring damage.

O-Ring Damage_Tufte

Tufte’s redesign arranges the NASA O-ring damage data to tell a graphical story played out over temperature range, with consequential, causation-clear failure results. The association (and story) can be discerned within seconds of viewing the graph. Viewing this, it would be hard not to be convinced of the visually obvious.

Tufte illustrates that the engineers and scientists who tried to persuade their superiors to postpone the Challenger flight had the technical expertise and the right data to back their claims. But, unfortunately, the manner in which those engineers visually presented that data did not translate the warning indicators clearly.

Had NASA managers seen the data presented so clearly and precisely as Tufte has visually rendered it, perhaps a sad moment in human history could have been avoided.

Good design is clear thinking made visible.



Use of Analogies – A Strategic Rose by Any Other Name

MemoryManDadDuring the course of a long and complex trial, a presenting attorney may not know what the jury is thinking, but if the attorney knows how jurors think, the introduction of a well-conceived Analogy, Metaphor or Familiar-Contextual Comparative demonstrative could well make the difference between shaping and guiding the perceptions of a jury … or leaving them to their own cognitive devices.

Cognitive Psychologists tell us that there are two fundamental types of decision makers – the “affective thinker” and the “cognitive thinker”.

Affective Jurors can frustrate attorneys. They tend to rely more on familiar experience, emotion and intuition, or simple, own-life ingrained associations to inform their decision-making. Though at outset of trial they are equally motivated to “weigh the facts”, they will more readily abandon logic in favor of Heuristics – looking for personal cues, outside the evidence, in search of mental shortcuts to arrive at decisions.

Cognitive Jurors tend to think more systematically for longer periods of time. They tend to wait until both arguments are heard and weighed before making judgments. But they too can resort to Heuristics, especially where motivation wanes from a lack of stimulating story & theme, or where prolonged tedium & dry complexity wears down interest.

“All Perception of Truth Is the Detection of an Analogy”

                                            – Henry David Thoreau 

To best address both types of thinkers, the Strategic Rule of Thumb is to design a presentation with preferential focus on the thinking behavior of the affective juror, while counting on the cognitive juror’s better and more prolonged attention to detail as the case progresses. The advantage is that both will respond to, retain and make use of a well-crafted analogy, metaphor or comparative graphic. Yet the analogy helps translate your themes of the case, for the affective juror in particular, into a familiar context that that juror can readily associate to personal experience, and persuade that juror’s understanding of the case.

Analogy – Two Case Studies: 

In one IP matter where I supported the plaintiffs, analogy played an important role in the Narrow-Broad Interpretation battle to define what encompasses a “Coaxial Cable”.

Common personal experience reinforced a narrow interpretation – what one buys when one asks for a “coaxial cable” at a Best Buy – a cable with a single, centered conductor. Defendants played upon this familiar experience to argue compellingly for a narrow interpretation of the alleged infringed invention.

We, the plaintiffs, came up with a commonly understood analogy to reclaim the “personal-contextual” playing field. The analogy comparatively illustrated the true, broader family of coaxial cables, as one “skilled in the art” would understand, as akin to the true, broader family of “cats” … consequently reframing the defendants’ narrow argument as equivalent to falsely trying to argue that only the common House Cat, from among all cats (Lions, Tigers, Cheetahs, etc), is a “cat”

“One Good Analogy Is Worth Three Hours Discussion”

                                         – Dudley Field Malone, Defense Attorney

                                           State vs. John Scopes (“the Monkey Trial”)


While supporting the defense on another patent matter, I devised a”Market Share” demonstrative useful for both
our expert’s testimony on potential damages and for Closing Statements. This graphic reduced expert market share tables and charts to an everyday, juror-familiar context – pocket money – to clearly illustrate how Plaintiff’s market share was comparatively almost non-existent. By using the $10 bill as the denominator against which to compare the Plaintiff’s market share, the scale of comparison what brought down to familiar everyday experience. And the objects of comparison – the $10 bill and 1/2 cent – would be easily retained to memory for deliberation.


Whether with simple or complex matters, jurors’ sustained attention to the logical weighing of the facts inevitably begins to hit rough cognitive waters. A well-conceived, compelling analogy can tap into a familiar context for the jurors to help shape or redirect the understanding of those potentially complex and arcane case facts for the jurors –  a strategic “rose by any other name” – to help spell success for the trial attorney.