One Way Criminal Defense Lawyers Can Do Better At Trial – Above the Law

courtroomIf you’re not a lawyer, jury service must seem like a very odd thing. You go to a government building you’ve likely not been to before. You’re seated in a big waiting room with a large group of others. You wait. Some of you are taken into a courtroom.

A judge asks you questions while lawyers stare and you, judging. Some of the people you’re with are sent away. The questions get more personal. “Have you, or anyone in your family, ever been a party to a lawsuit?” You wonder why the lady in the corner has to go up to the bench to answer that one.

Finally, after more questions and judging and waiting, you’re put in the jury box. The judge gives you instructions that are — as likely as not — read at you like they’ve been read by this judge five hundred times before. You try to pay attention.

Then the lawyers start talking.

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Personally, I imagine jury service to be kind of like going to a conference. You’re someplace unfamiliar doing something you don’t do every day. It takes me about a day at a conference to learn where the bathroom is. I can’t imagine how jurors retain both the rules they’re supposed to follow as instructed by the judge and the details of the case they’re supposed to decide.

Or, rather, I can imagine how jurors remember these things. They don’t.

Compounding the problem that jury service is a fundamentally odd human experience, lawyers — as a general matter — have an irrationally high view of their own ability to communicate effectively using only words. Perhaps when people were steeped in an oral tradition, when we each spent hours sitting around the fireplace while members of the family took turns telling yarns, this reliance on language made sense.

But the times they have a-changed. And based on what I’ve seen in many courtrooms, most criminal defense lawyers just haven’t kept up. The Department of Justice spends serious resources on trial advocacy, and some of those lawyers and offices are very effective at using other ways of communicating with juries.

The private bar — including the private criminal defense bar — has not kept up.

Enter Kerri Ruttenberg’s fantastic book “Images with Impact” about how to use visuals effectively at trial. Ruttenberg is a partner at Jones Day with a healthy résumé of trial experience. She’s also a landscape photographer. She may be the perfect person to put together this resource.

I’m tempted to say that “Images with Impact” is to oral advocacy what “Typography for Lawyers” is for written work, except that too few lawyers seem to have read or tried to follow “Typography for Lawyers” (which is why so much lawyer written work product is so hard to understand) and I don’t want to curse “Images with Impact” to the same fate.

The state of lawyer use of images is sad. Many lawyers — and I’ve fallen victim to this — think that an effective visual is a Powerpoint slide with the same words on it that you’re going to say.

As Ruttenberg notes, “Showing a bunch of words on a screen does not magically create an effective visual.”

Savvy and lazy counsel will, at this point, try to put words on a slide, then put pictures around them. Presto, instant visuals!

Ruttenberg quotes a graphic designer on this:

If your content is boring and your type is boring, some random graphic is not going to make it better. If you’re using a default template with small black type on a large white background, indiscriminate clip art in the corners is not going to fix it.

Ruttenberg first shows you what you’re likely doing wrong. The rest of the book is then a tour through different principles of graphic design with an eye toward what would be admissible at trial.

Lawyers’ knee-jerk reaction is often that taking the time to put together visual aids is hard, takes time, and won’t be sensitive to the changing dynamics in a trial. But, as Ruttenberg makes clear, it’s easier and more important than you think to put together a visually appealing presentation.


Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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