August 2000 

Six Tips for Illustrative Trial Exhibit Design

by Craig Parsley and Cashton L. Sessler

Studies have shown that juries remember testimony better when it is supported by visual aids such as illustrations, story boards, models or computer-generated graphics. However, presenting concise illustrative data to a jury, judge or arbitrator poses numerous hurdles for an attorney. The complexity of information, sheer volume, and rules regarding the admissibility of evidence pose challenges unique to each case. Data presentations must be designed to take advantage of the cognitive abilities of your audience, but at the same time avoid the oversimplification that could alienate some jurors. Should a judge rule your visual aid is not admissible as evidence, you, the alert practitioner, should always remember that visual aids can be used for demonstrative or illustrative purposes, too.

Visual aids offered for these purposes will not go back into the jury room, but will still help you to explain your case to a jury as you present testimony, or help you to summarize the opinions or testimony of expert or lay witnesses in closing arguments. The six tips for illustrative design presented in this article will assist attorneys, experts and illustrative designers with the task of preparing concise, compelling and interesting visual aids as illustrative trial exhibits to accompany witness testimony and final arguments.

A well-executed visual aid will be able to stand alone without testimonial explanation by your expert. Or, in the absence of expert testimony, a visual aid can serve to summarize a lay witness's recollection of events. In a low-velocity automobile collision case, for example, how could force of impact, extent of injuries, and damage to vehicles be illustrated to answer the question, "Did this collision cause injury to the victim?" Your visual aid must compare collision images with medical data. If possible, present all the data on one board. To do this, use Adobe Photoshop or a similar image-editing program. Place the actual vehicles in a photo-recreation of the collision scenario. Then contrast the collision visuals side-by-side with a medical timeline or chart notes (see image). Your jury is now able to view, within one image, the collision and resultant injury. X-rays can also be placed in lieu of medical chart notes. In this scenario, you have visually presented a change in the physical condition of the victim that did not exist before the collision. Additionally, you have given the jury a visual experience of what the victim experienced. The fundamental question of injury to the victim is answered. A graphic designer will charge you $500-$1,200 for this type of visual aid, depending on the complexity of the collision.

An effective trial strategy is to appeal to the cognitive abilities of your jurors by providing them a visual anchor with which to compare all other testimony. This comparison strategy supports your own witness's testimony, as well as discrediting opposing counsel's. For example, if a process machine injures a worker, one might ask if the operator was following recommended procedures when the injury occurred. Several illustrations could be prepared to support the contention that the operator did or did not perform his job properly. One illustration might contrast operator handbook text with a photo reconstruction of the incident, thus inviting comparison. Another could compare production techniques with industry standards. In each of these scenarios, the jury is engaged in the cognitive activity of deciding if the comparison is valid. If it is, you are one step closer to winning your case.

You or your opponent might be asserting that a physician has undermedicated a heart patient over time, leading to cardiac arrest. A chart which plots medication dosage history against increasing symptoms abstracted from chart notes would demonstrate whether or not the dosage levels (cause) resulted in the cardiac arrest (effect). In some cases, subjective data such as pain or discomfort due to an injury can be plotted over time to demonstrate that a collision (cause) resulted in increased pain or discomfort (effect). Cause and effect illustrations generally require sufficient data to demonstrate trends before or after an event.

A visual aid can assist a confused jury as they try to sort out scientific evidence from hyperbole and junk science. It does not matter if your witness testimony is addressing the fraction of a second it takes to slip on a wet floor or the five years necessary for a building foundation to crum-ble, your illustration should attempt to clearly demonstrate these concepts (within one board, if possible). In the wet-floor scenario, the mechanism is water, the process is a reduction in friction on the floor surface caused by the water, and the change is the victim's shoe moving from a steady state (adequate friction) to an unsteady state (inadequate friction). One three-panel visual presentation with a minimum of text would strongly support such a contention.

Clip art is a distraction from good data. Questionable data and poor data presentations are often augmented by the use of colorful icons that are supposed to give the data validity. Pictures of doctors with stethoscopes, workers in hardhats and large $ signs add nothing to the data except distraction value. If the data set from which your illustration was created is good, then it will need no enhancements, provided the presentation is compelling. Garish colors do not make a presentation more effective. Oftentimes, illustrators overuse the color red in charts to denote significant incidents (death, accidents, pain, etc.). Red should be used sparingly, as its connotation and impact vary from juror to juror. The use of the color green in economic charts to denote "cost or value" is a visual redundancy. A simple rule to follow in illustrative design is to use the smallest possible color difference to get the job done. A bar chart on a white background need only contain a 10 percent magenta tint with 70 percent black (gray) text. Subsequent color bars of magenta should increase in color value by increments of 10 percent. Subtler colors are pleasing to the eye and require less visual sorting by your audience.

All too often, lawyers support expert testimony with numerous presentation boards displayed in sequence (or haphazardly under cross-examination). Creating one diagram for each variable is often confusing, especially if your expert has to go back and forth between diagrams. However, most illustrations can contain several variables and several images without appearing too complex. These "one-board" illustrations, which tell the whole story with one picture, are extremely effective tools. The expert witness does not have to stop his testimony to change boards, and the jury is not distracted. They give the viewer a "snapshot" of the whole argument and allow savvy jurors to read ahead of the testimony at their own pace. For example, an auto collision reconstruction diagram might show time, change in velocity, direction and force of impact. The illustration previously discussed could incorporate the photo reconstruction superimposed over a chart which plots time and velocity (or distance) on the X axis and delta V (change in velocity) and force on the Y axis. Thus, in one picture the jury sees the collision reenacted and how hard the victim was hit. Presenting collision damage to the vehicles on the same board further augments your case.

With the recent drop in the cost of computer technology, some litigators are turning to computer animation as an illustrative technique for product liability, auto collision and premises cases. While computer animation has appeal in our short-attention-span society, we generally do not recommend the use of animation unless the evidence and budget warrants. Multivariate illustrations have several distinct advantages over computer-generated animations. Certainly, they are less expensive (several hundred dollars versus several thousand). More importantly, they have a static quality that continuously conveys your argument to the jury even after you sit down to let your opponent cross-examine or try to rebut your closing argument.

The six tips presented here will serve as a guideline to keep your case costs under control while preparing concise visual arguments for trial.

For further reading on the topic of illustrative design, see Visual Explanations, Images and Quantities, Evidence and Narrative by Edward R. Tufte, Graphic Press, 1997.

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