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Demonstrative Evidence and the Duty to Entertain at Trial
Part 3 of 3 (jump to part
1 here or part
2 here)
The Experience Economy
Another fairly recent trend our society is the advent of the “experience
economy” as outlined by authors B. Joseph Pine II and James H.
Gilmore. Their basic premise is that our society has shifted from being
primarily agriculture based, to one based upon manufacturing, then one
that is service based. Now, our economy has evolved once more and is
today centered upon providing consumers with an entire experience, creating
events that go beyond simply providing a good or service.
The penultimate example of a company that relies on the experience economy
is Walt Disney, whose Disney Parks offer not just amusement park rides
but a full range of other services and goods that are delivered in a
distinct, distinguishable way. The experience of visiting a Disney park
includes interaction with Disney staff, eating at Disney restaurants,
relying on Disney transportation, all of which have a particular and
recognizable feel. Guests participate fully in the experience, employees
act out roles and personalize each event for Disney guests.
The entertainment industry has clearly applied the lessons of the experience
economy to its field, and now other industries such as Starbucks and
Pizza Hut are following this trend. Starbucks can successfully charge
several dollars for a cup of coffee because its customers are receiving
more than a cup of coffee- they buy the “feeling” they get
when they enter the shop, identifiable by certain music playing, by
the design of the items sold as well as the actual store, by the type
of other customers in the store, by the ability to sit and chat at a
table. The tools these businesses use, proven to please their consumer
audience, should be translated into the world of litigation. No longer
can a lawyer simply stand up, orally argue the points of the case, and
expect her audience to remain attentive. They must provide an experience
for the jury.
A reasonable goal might be to use one piece of demonstrative evidence
with each witness (both on direct and cross-examination) for each element
of the trial. Ideally, the exhibits alone would almost argue the entire
case, to the point that a deaf jury could understand the case merely
by reading the exhibits. If such a jury were only to see the exhibits
and then be required to answer the court's charge, they could probably
do so if the exhibits had been prepared to address all the outcome-determinative
issues in the case. All too frequently, lawyers prepare exhibits without
giving adequate attention to the most critically disputed facts and
how their resolution will cause the jury to answer the questions in
the court's charge.
Availability of Demonstrative Evidence
and Support
Now that you are aware of the necessity of fighting jury apathy and
passivity, how do you do it? Whether your trial expenses are severely
limited by your client’s bank account or if your client has given
you carte blanche to spend, you can find a way to support your case
with appropriate graphics and animation.
You can hire a design or animation company that specializes in creating
exhibits that keep jurors interested and that convincingly convey information.
Take advantage of the fact that many of these companies have years of
experience determining which factors are important to the aid in juror
absorption of facts. Juror psychologists, whose services can include
testing exhibits on mock jurors, are also available at varying costs.
Presentation hardware specialists can manage any equipment difficulties
that present themselves during trial.
You can also purchase inexpensive design software to create your exhibits
in-house, and there are numerous design theory resources from which
you can gather information. Professor Edward Tufte, a leading design
theorist, has published a series of books on this topic and offers seminars
to the public.
Regardless of which tools you choose, you must recognize your duty as
a member of the trial team to not only transfer vital information to
the jury, but also to safeguard your client’s interests by keeping
the jury alert, interested and entertained.
End of Part 3 of 3 (jump to part
1 here or part
2 here)
Footnotes:
1. See generally B. Joseph Pine II, James H. Gilmore,The Experience
Economy (Harvard Business School Press) (1999).
2. Fred Misko Jr., Picture This! Demonstrative Evidence (Oct. 13, 1995)
(published online at www.misko.com/library/demsbar.htm)
3. Frank Herrera, Jr. and Sonia Rodriguez, Courtroom Technology: Tools
for Persuasion, Trial, May 1999, citing Lewis L. Lapham, Hide-and-Go-Seek,
Harper’s, Nov. 1, 1998, at 11.
4. Id.
5. Hunt, Litigation News, Use of Videotape in Opening Statement (May
1997); Bernstein, Lawyers Alert, Presenting Time Lines (June 1992).
6. Misko, supra Note 2.
7. Benjamin K. Riley. On Trial Tips: Effective Use of Computer Graphics
and Animations, Association of Business Trial Lawyers (November 1997).
8. Mike Mccurley and Diana S. Freidman, The Art of Persuasion, (published
online at http://www.aaml.org/artof.htm)
9. Misko, supra Note 2.
10. Edward Tufte, Visual Explanations: Images and Quantities, Evidence
and Narrative; Envisioning Information; and The Visual or Display of
Quantitative Information (Graphics Press)( 1997,1990, and 1983, respectively).
To discuss upcoming litigation please
contact:
Tanya S. Cunningham, JD
sales@animators.com
1.800.337.7697 ext 122
703.548.1799 ext 122
703.548.5450 (fax)
Animators at Law is the nation's leading attorney owned and operated
producer of trial exhibits, jury research and animation. To date, Animators
has consulted on hundreds of significant national cases with cumulative
favorable decisions exceeding one trillion dollars. Our clients include
more than three quarters of the nation's top 20 law firms and hundreds
of others. While most of our team is based in our Washington, DC headquarters,
local offices and relationships allow us to easily work in New York,
Chicago, Los Angeles, San Francisco, Texas, Florida & Philadelphia.
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