“On the Jury Trial” – Melsheimer and Smith

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“On The Jury Trial”

Our long-time friend and client, one of the great trial lawyers of our time, Tom Melsheimer, has written this wonderful book with his friend and colleague, Judge Craig Smith. “On The Jury Trial” speaks to the importance of trial lawyers to our system of justice and is filled with insight, strategies and techniques that will help any lawyer, new or well seasoned, to become a more effective advocate in the courtroom. It’s receiving some very high praise from the likes of Lisa Blue, Steve Susman, Mark Lanier, and Dick Sayles among others.

“Its combination of advice, illustration, and commentary is every bit as valuable as it is unique. There is no better picture, in my view, of how to prepare for a jury trial. Every litigator should have this book on the shelf, no matter the state where they practice.” Judge Royal Ferguson (ret.)

With subjects including voir dire, preparing witnesses, conducting direct and cross examinations, closing arguments, demonstratives, and more, you’ll get the inside scoop from the trial lawyer’s perspective as well as the judge’s. Jason Barnes was honored and pleased to provide the chapter illustrations and, together with Sully Ridout, the design of the cover. It is the second book published this year to which Jason was a contributor. (“Images with Impact” by Ruttenberg)

Noted author and trial lawyer, Michael Tigar, says that every lawyer should read this book. We would add that every trial consultant should do the same. As trial consultants, we shape the presentation of evidence and argument to jurors in every case. Fluency in the techniques, understanding the strategies, and familiarity with the preparatory practices of great trial lawyers makes us all the more effective at our jobs. At Barnes & Roberts, our consultants have been steeped in these subjects in countless war rooms and court rooms since 1998.


Images With Impact – K. Ruttenberg


I am very proud to have contributed demonstrative samples to this fine book by Kerri Ruttenberg. The book provides over 300 pages packed with great advice and well-designed examples of just about every type of graphic you’ll ever need. Ms. Ruttenberg has given us an excellent reference for using demonstrative evidence that should find a place on your bookshelf. Reviews can be found herehere, here, here, here, and here. You can buy the book hereor here.

From Ken Broda-Bahm at the Persuasive Litigator: “Part II of the book specifically focuses on the main tools of visual communication, including design types like charts, maps, timelines, diagrams, or even simple text. Each of those segments include well-designed samples from a number of different designers — Barnes & Roberts, Chicago Winter, Core Legal Concepts and RLM/TrialGraphix — with the result being that the 318 pages of content are filled with professional and beautiful graphics. With that wealth of examples, the book is a good source of inspiration. The timeline chapter alone (Chapter 7) should be required reading for everyone who still uses just the old ‘sticks and flags’ method of arranging the events on a single line.”

Here are a few samples from the book:

How much do jurors remember?
Where does the doctor get his information?
Did I pay too much for this flight?
How does that credit card system work?


Document Excerpts – The Dos and the Don’ts

Document excerpts are a mainstay of litigation graphics so it is important that we get it right. In the 27 years that I’ve been in litigation graphics, I’ve seen a lot of well-designed excerpts, and a lot of poorly designed examples, too. Today I want to explore this particular type of graphic and pass on some design tips. First, I’ll point out some common design choices that, in my opinion, are bad. Thereafter, I’ll show a few examples of good excerpt design. So, let’s get started.

BAD EXAMPLE 1 – In the slide below, the design is distracting and obscures the actual information you are trying to convey. The bold black lines, the drop shadows everywhere, and the bold, swooping arrows are not helping. Instead, they are visual clutter drawing attention away from the content. The highlighting overlays and diminishes the contrast of the text below making it harder to read and less important to the eye. The title tells the viewer almost nothing. There is no citation to identify the document. In the second call-out, the whole of it is highlighted. When we highlight everything, we’ve highlighted nothing. Restraint in highlighting is important.


BAD EXAMPLE 2 – In the next example, the excerpt highlighting color is corrected, but we’ve traded in our arrows for tinted boxes to indicate the position of the excerpted text. Again, the graphic elements are distracting and diminish the impact of the excerpted text. There are instances where we would want to indicate the position of origin. For example a footnote or a single line in a long drug monograph. But, these instances are rare and should not form the basis of a typical design. The words are always important, the position rarely is.


EXAMPLE 3 – We often see document experts that have been stretched and squeezed to “fill the slide.” This technique rarely improves the situation. If your text is too small or too low in quality, retyping might be the best solution. Here, again, we see the tinted overlay highlighting and the return of the swoopy arrow. This example, along with example 1, have multiple page icons to indicate that there is more than one page to the document. There may be times when you wish to demonstrate that a document has more than one page, but there are other ways to do that more effectively. For example, you might create a slide showing each page fanned out with some text indicated the total number of pages. Here it just makes a distractingly heavy element on the left when our content is on the right.


BAD EXAMPLE 4 – Clients often ask for the document image to be full size on the slide so the jury can read it. Unless it is animated, however, that design inevitably leads to something like the slide below where the excerpts complete cover the underlying document. In this case, we would ask ourselves why we included the full page at all. A point which must be made is that as soon as you decide to overlay the document with the excerpt, you absolutely have to include borders and shadows around your images to help the viewer understand the positional relationship of the original document and the two excerpts. However, each of these three elements share identical strokes and shadows which don’t look very natural. The underlying document should have a lighter, thinner stroke and a smaller shadow to help separate the layers.


BAD EXAMPLE 5 – Unless your evidence is in the form of an old newspaper clipping, there is absolutely no reason to ever use the torn-edge-paper graphic on your slide. No reason. Ever. It takes up space, it distracts, and it simply is not realistic. Are you portraying the fact that you ripped up the document to produce this image? Of course not. Would you ever do that to a real document? Equally preposterous. So why do it on your slide? I see these on the news shows every now and then but, seriously, it’s bad. Please don’t do it.


GOOD EXAMPLE 1 – Below we see an excerpt slide that attempts to fix the problems with the slides above, to be organized and structured, to be clear about its source and its content, and to eliminate all unnecessary graphic elements. First, we have a meaningful title. The title is important and ought not be wasted. We show only the front page of the document as it will be most easily recognized and is in most cases marked with the trial exhibit sticker. The page is a good mark of “authenticity” to give the jurors comfort that the expert really is from that document. But we don’ need to show each page. Since the page icon is on a white background, we separate it with a light stroke and small shadow. We identify the document with a colloquial description, words that we use all the time to describe the document. We also identify it as PX 101 so that everyone in the courtroom knows what we are talking about. It is a good reminder for the attorney to state the exhibit number of the excerpt for the record. We also add a date to help put the document in context. At the bottom left, we can provide additional cite information. Note that these descriptors are lightly colored so that although they are easily seen, they are not competing with the content of the excerpt itself. As for the excerpt, we simply let it lay on the white background with no stroke, no shadow. We separate the two callouts by a dividing line – subtle and not distracting but sufficient to separate the two elements. The highlighting is only on those portions of the excerpt that are the most important.


GOOD EXAMPLE 2 – Some people prefer a dark background. Here we’ve taken the slide above and converted it into a slide with a dark blue background. The excerpt text is slightly smaller because we’ve had to place it in the white box. Remember that all graphic elements will take up some room leaving less room for the content. On the other hand, the white boxes more clearly separate the two excerpts. Notice, however, that there are few strokes or borders, and no shadows of any kind as the high contrast between white and blue does the work for us.


GOOD EXAMPLES 3 AND 4 – In the examples below, we’ve switched out our small page icon for a larger image. We can read the top lines (just barely) and can easily recognize the document. We’ve kept all the identifying information: description, exhibit number, and the date. Because we want both a large document icon and the best clarity we can get for our expert, we have filled the horizontal image are with the excerpt, leaving a little breathing room on either side. We are careful not to cover any important information on the large page icon. That means we may have to break up larger text blocks into two slides. In both instances, because we have overlapping elements, we have to use strokes and shadows. These use up room and can compete with the content for the user’s eye. So, we minimize them and make them just strong enough to do the job and no more.




In all of our work, we would be wise to follow the advice of some pretty smart people:

Leonardo DaVinci: “Simplicity is the ultimate sophistication.”

Ludwig Mies Van der Rohe: “Less is more.”

Albert Einstein (possibly apocryphal): “Make everything as simple as possible but not simpler.”

Apply these principles and make better demonstratives. Need help? Call us!

Jury Slaps SurgiQuest with $10M Punitive Damage Award in False Advertising Trial


A Delaware jury awarded $2.2M in actual damages and $10M in punitive damages to Lexion Medical after a 7-day trial in which they heard evidence that SurgiQuest had intentionally engaged in false advertising and unfair competition concerning instruments used in laparoscopic surgery. The trial presented several difficulties. Not the least of which was proving a nexus or link between the false statements and a surgeon’s or hospital’s purchasing decision. Many witnesses would be presented, mostly via videotaped deposition, to illustrate that surgeons and surgical staff not only believed the false claims but acted upon those beliefs. Also presented through both live and videotaped testimony was the testimony of many SurgiQuest sales reps who said that they had been told in training the same falsehoods and had come to believe those falsehoods. (Press Release)

Putting on a case where so many witnesses were needed to prove up the claims was a huge challenge. Hours of designations were whittled down to the nub in a relentless cycle, most to under 7 minutes. In one day, the Lexion team presented 20 witnesses: 4 live and 16 by videotape. That’s certainly a lot of video, but the quick pace and short duration of each kept the jury interested. The videos were broken up with live witnesses, as well.

Diagrams, photographs, documents and testimony excerpts formed the basis of most expert testimony. Although the subject of animations to explain the surgical procedure and instrumentation were discussed early on, we recommended static diagrams which are faster and less expensive to produce, more flexible in the Q:A format of an examination, and less susceptible to objections from opposing counsel. For closing, we prepared some 200 slides, most of which were testimony experts from trial testimony paired with key documents. Focusing on admissions made by SurgiQuest’s witnesses brought a lot of credibility to the argument.


Congratulations to David Wille, Paul Reilly and Megan LaDriere of Baker Botts (Dallas) for putting on a strong case and bringing a victory to Lexion Medical. We are proud to have helped!

Graphics Double Comprehension


We all understand that we should incorporate graphics to strengthen the power of our presentations. It’s a maxim supported by our personal learning experiences, our observations of others, and by numerous scientific examinations. But, why does it work, and how strong is the effect in the courtroom? The answer to these questions can be found   within the very structure of your   brain.

You remember what you see far more than what you hear.

As humans, we experience our world through our eyes. Your retinas contain 70% of all    sensory receptors in your body and are actually outgrowths of your brain! Your brain’s visual system occupies up to 40% of your cerebral cortex. For comparison, touch takes up about 8% of the cerebral cortex and hearing accounts for only 3%.    [1][2]

We are visual creatures – but our ability to use language is a defining, though not quite exclusive, human characteristic. Even so, our linguistic abilities arise from much smaller areas of the brain found almost entirely within one hemisphere – Broca’s area and Wernicke’s area. [3] [4]

This visual dominance explains why our ability to remember visuals is far greater than our ability to remember words. Studies consistently demonstrate that people shown over 2,000 images for a few seconds each can remember having seen them or not with an accuracy exceeding 90%, even after 3 days. [5] People’s ability to accurately recall what was said to them is about 50% immediately following a presentation and falls to about 25% after only 1 day. [6] Worse, research suggests that about half of what you remember is actually incorrect. [7]

Words and pictures interact to form more meaningful connections.

So, now we know that jurors can remember less than half of what they hear and almost all of what they see. But simply remembering the evidence is not enough. We need jurors who understand the evidence, who can fit that understanding into their larger world-view. And    we need jurors who can work as our advocates during deliberations, using their  understanding of the evidence to craft new arguments as they work with other jurors to   reach a verdict.

Neuroscientists describe the visual and verbal systems of our brain using a “dual coding  model” in which each channel operates independently to process information. Both channels have limited bandwidth and can be overwhelmed by too much stimulation – too many words  or images coming too quickly – but they do not interfere with one another. [8] Instead, raw data from both the visual and verbal channels are buffered in working memory where information and meaning are extracted, tested against information we already know, and if deemed important enough, stored in long-term memory for later   recall.

Importantly, while information is in working memory, the visual and verbal channels can interact with one another. When the information from each channel “fits together,” it forms something stronger and more meaningful. Like cement mixing with sand and gravel to form concrete, the interacting information is changed into a self-reinforcing amalgam, an idea not

only remembered but understood. This interlocked understanding linking the words and the picture together can then be stored in long term memory. When we think of the words, we see the images. When we think of the image, we also hear the words. The interlinking is what gives meaning to each.


Combining visuals and words doubles comprehension.

Some remarkable research from Dr. Richard Mayer at the University of California shines a light on putting pictures to our words, what he calls the “multimedia principle.” Not only does his work validate what we know about dual coding with the visual and verbal channels, he has measured the improvement in learning – not just memory, but understanding of the subject matter.

Briefly, he gave one group of subjects a lecture on how a tire pump works while another group heard the same lecture synchronized with an animation of the tire pump in action. Dr. Mayer wanted to know which group understood the material better. To  get at this information, he posed questions designed to test recall and application of the facts. For example, one question asked participants how to improve the pump’s efficiency and another question asked them to troubleshoot a malfunctioning pump. These ideas were not covered in the presentation. To answer, subjects would have to demonstrate an understanding of how and why the pump works. The results were dramatic.


“Subjects were scored based on whether their answers to the problem solving scenarios were considered plausible or acceptable by researchers conducting the study. They were given four questions, with 2.5 minutes to come up with as many solutions for each question.”


The lesson for trial advocates is clear.

If we want jurors to not only remember our evidence and our arguments, but to also understand them, we must use visuals to strengthen our words. If you are explaining a business deal, draw a flow-chart. If you are explaining technology, narrate an animation. If you are telling a story, use a timeline, photos of the characters, maps, etc. to illustrate each   scene.

We must be careful to remember that the jury is always looking; their visual system is a 24- hour news channel that can’t be turned off. We should, as much as possible, control what      they see. There is a time for demonstratives and visual evidence, certainly. But, there is also a time for having the jury look at the squirm of a witness, the grim expression of the defendant, the eyes of the attorney delivering a passionate closing argument. We may even want to visually distract when things are not going so well. Everything they see is visual evidence – make certain it works to your benefit.