As trial lawyers, we have numerous options as to how we “communicate” our point. Since we know that people learn in different ways, we have more than just our voice in opening statement to get our point across. We can use programs like TrialPad or Sanction, throw a document on the Elmo presenter document camera, or just wing it with our voice (not recommended). We have been told for years now that the generic PowerPoint bullet slide is almost counterproductive, and should not be used at trial as they are not effective generally with jurors. But PowerPoint (or Keynote for us Mac users) can really make a difference if used properly. The problem is, too many people use these PowerPoint “bullet point” slides (see above), which become a turn off to the viewer. However, when slides are well-crafted, graphic demonstrative aids using up-to-date presentation technology, jurors tend to not only get the point, but think more highly of you in the process.
As it turns out, there is actually a peer-reviewed, published study discussing the use of properly prepared PowerPoint slides versus non-use in the trial setting. The research from Jaihyun Park and Neil Feigenson tends to prove that most jurors “get it” better when the slides are used. See “Effects Of A Visual Technology On Mock Juror Decision Making,” Applied Cognitive Psychology, Vol. 27, issue 2, pages 235-246, March/April 2013, at http://onlinelibrary.wiley.com/doi/10.1002/acp.2900/abstract. Using a fact pattern based on a racial discrimination case (plaintiffs were Afro-American employees- defendant was a big railroad corporation), the authors used almost 200 participants.
As best they could, they tried to hold the attorney presentation constant (including video presentation, arguments and language) and created versions with the attorney either using appropriate slides in opening statement, or not, depending upon the control. In other words, there were four versions of the experiment with different, but similar, participants. One in which the plaintiff used slides but defendant did not, one in which the defendant used slides and the plaintiff did not, one in which both plaintiff and defendant used slides, and one in which neither plaintiff nor defendant used slides. To see the slides and the transcript of the opening corresponding to each slide go to: http://www.baruch.cuny.edu/wsas/academics/psychology/jpark.htm and click on the link at the bottom of the page.
The results were quite clear. Whichever attorney used the PowerPoint slides tended to get better marks from the “jurors” showing the participants tended to “recall the [plaintiff/defendant] lawyer’s statistical evidence more accurately and to think better of the [plaintiff/defendant] lawyer’s level of preparation, competence and credibility.”
There are probably several reasons for this, including the fact that modern jurors, especially Millennials, tend to view the smooth use of technology as a reflection of competency. There are numerous studies that support the ELM or “Elaboration Likelihood Model” when studying human communication. The theory suggests that message receivers follow a “dual” process in sifting through or processing information. See Cacioppo and Petty (1984), “The Elaboration Likelihood Model of Persuasion.” NA Advances In Consumer Research, pages 673-675. At times human brains actually carefully think through the information submitted to reach a conclusion (the central route), and at times the brain just relies on peripheral “cues” to assume credibility of the source (the peripheral route). In other words, sometimes we “read the book,” sometimes we just “judge the cover.” But in reality we do both everyday. In anecdotal work during focus groups and in discussions with observers of a trial (post verdict), we have found that even Baby Boomers tend to be effected by the seamless use of good technology in trial presentations. The Millennials are even more subject to the ELM effect. Why do you think even local news anchors hold an I-Pad (they are not looking at) while they stand in front of updated, high tech sets- we tend to trust those folks we feel have a good handle on complex technology.
The bottom line is that attorneys, especially plaintiff attorneys, start out a jury trial with jurors who are close- minded and believe that attorneys are not trustworthy and will try to “manipulate” the juror. Anything we can do to add to our credibility is a plus. The key is to make sure that the PowerPoint slides being used actually display the information in a professional, graphic way that actually assists those “visual” learners, while not distracting the other jurors attention. So how do you know what works? Test it. Focus groups are for more than just getting to see what a group of people generally think about the facts of your case.
Getting a complex case to trial before a jury in today’s world takes more than just a smart lawyer with a good theory of the case and a good expert. In the last few years, many of us have seen cases lost even though the plaintiff clearly had the best experts and the facts favored a plaintiff’s verdict. Modern jurors are complex and are still buying into the “frivolous lawsuit” tort reform media campaigns. In order to get the best results, cases need to have as much of the presentation as possible tested beforehand, and then presented with the best demonstrative aids using seamless presentation technology. Fumbling around in court with a large flip pad, poorly designed poster board exhibits or presentation software that works sporadically reflects badly on both the attorney’s credibility and message.
So the best path is to research, refine, refocus, and reframe in order to relate to the jury in your particular venue. Hard work is usually rewarded, but in modern jury practice, that hard work is no longer just about writing good opening statements or knowing the law better than even the judge. It includes making sure that you are presenting your message with the best use of technology and graphics.