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Business litigators should strive for visual literacy.

Byline: BridgeTower Media Newswires

The proper, effective and admissible use of visual communication has become the Wild West of litigation today. This is no less of an issue for the business litigator than it is for the criminal prosecutor or personal injury lawyer.

Technology, through the development of on-demand custom visuals, has ushered us into an era in which there is no excuse for not communicating effectively using visualization. As a result, visual literacy is now a very important aspect of the well-prepared trial lawyer's continuing education.

By merely using visual presentation technology, some trial lawyers mistakenly think that they are "being visual." Mere use of presentation technology is not the same as visual literacy. Visual communication should be more than simply showing evidence to the audience. Effective visualization combines proper design, storytelling and communication techniques.

Questions to ask

Have you studied the principles behind the proper way to display information? Do you know the methods for effectively using visual communication in business litigation? Have you read any recent books on or received specialized training in visual communication?

Do you know how "Napoleon's March to Moscow" can help you develop a closing argument graphic? Or are you still using the very same methods you learned when you took your first trial practice course in law school?

Ten years ago, it might have been acceptable to blame poor law school training for ineptitude regarding visual communication. Though most law schools continue to downplay the extreme importance of visual communication (with the notable exception of Neal Feigenson's "Visual Persuasion" course at Quinnipiac University School of Law), the blame rests squarely on the individual trial lawyer who remains visually illiterate.

The world has changed

Trial lawyers are trained thoroughly in verbal communication. The world, however, has changed. The visual has taken on a major role in today's society. Trial lawyers need to adapt and become literate in the proper use of visuals. Not to do so is a dereliction of one's duty and one day may even become the basis for legal malpractice.

Some cases, such as homicides, have a very visual nature. The evidence can be located on a map or diagram. There may be surveillance video evidence. The facts of the case may have a three-dimensional aspect, e.g., blood spatter evidence or bullet trajectories.

Personal injury cases, likewise, are quite visual by nature; for example, scaffold collapses and car crashes.

Business cases

Business cases do not have the same inherent visual nature. This fact does not justify light (or no) use of visuals in business litigation. A mistake business litigators make is to classify a case as "not very visual."

In fact, in cases that are less inherently visual, the argument is even more compelling for using visuals to clarify the details and engage the audience.

Visualization is not about showing "visual evidence," as much as it is about making all evidence (even dry, boring data) visual. So as a litigator, you shouldn't wait for the right case to use an animation. In contrast, visualizing non-visual evidence will bring your important information to life.

Visualization is powerful. It allows the litigator to: distinguish competing theories of the case, simplify complex issues, clarify unclear concepts and ideas, expose legal nuances, rebut your opponent's visuals, and control the perception of the audience so that they see the dispute in precisely the way you, the litigator, see it.

Visual literacy

When it comes to communicating a business case, visual literacy is something many litigators struggle with. As a trial lawyer is preparing for mediation, arbitration or trial, the following guide can help choose which tools to employ:

Highlighted documents: Highlighting key documents is a favorite of trial lawyers. But beware of overuse, because once you've highlighted 400 documents, you've essentially highlighted nothing.

Charts and graphs of data: These are the obvious visuals that most business litigators use: pie chart, line graph, etc.

Diagrams and business relationships: These visuals can be very helpful to understanding the underlying issues in the dispute, answering questions like: Where is the precise extent of the real property? Who was in the line of authority at the time of the critical event? Who reported to whom?

Custom business processes: Business processes often form the basis of a dispute. To be able to communicate the business process accurately, the litigator must take control of the narrative of the case. The most effective way to do that is by graphically and iconically illustrating the business process under dispute.

Interactive timelines: Business disputes often involve knowledge of details of the business relationship over time. An interactive timeline allows access to documents associated with each event (email correspondence, phone calls, text messages, meetings, letters sent via snail mail, etc.).

3-D model: Visualizing complex mathematical concepts or accounting rules can be done using 3-D modeling. For example, I once was asked to visualize the two different ways that a landlord and tenant's tax liabilities would differ depending on the type of tax calculation being applied to all or part of a physical building. With the development of a 3-D model of the structure, the competing tax calculations could be visualized showing the taxable and non-taxable areas of the property highlighted in different colors under each scenario.

Summary graphics: Napoleon's March to Moscow is an ideal example of a summary graphic. It is a drawing by Charles Joseph Minard showing the losses Napoleon's army suffered in the Russian campaign of 1812. The illustration has been redrawn and improved by Edward Tufte.

His advice on developing effective visuals should be employed in every business litigation dispute. Tufte's famous illustration uses a visualization method (multivariate interaction) that can be employed as a case summary for a mediator or arbitrator. It also can be the anchor for an effective closing argument. Building such a graphic requires an understanding of the details of the entire case, the legal issues in dispute, and the principles used in the proper display of complex information.

Summary

Visual literacy is now an important aspect of the well-prepared trial lawyer's continuing education. By studying and using the proper, effective and admissible use of visual communication, today's business litigator will gain a substantial advantage, impress clients, and tell a better story.

Attorney Brian J. Carney is president of WIN Interactive, a multimedia company that works with trial lawyers. He can be contacted at b.carney@wininteractive.com.

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Author:Carney, Brian J.
Publication:Michigan Lawyers Weekly
Date:Sep 13, 2018
Words:1070
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