Monday, April 25, 2011

From Where You're Sitting...

As lawyers or lay participants in the legal system, we are often not afforded the luxury of the truth. It's most often the very fact that two parties see a set of facts in different ways that lead to the disputes in our courts. I'm not saying that there is no such thing as Truth with a capital "T" (anyone that wants to have this philosophical conversation with me can drop me a line and we can talk objectivism v. relativism for hours). I'm also not saying that we can't know certain facts (such as an undisputed date of a murder) as truth. What I am saying is that we are often not given a full data set of truthful facts upon which to make up our minds. If we had that set of facts, we wouldn't need lawyers for anything other than muddying the water (which we are so good at), but instead everyone would simply know what happened.

With that said, a lawyer and his/her client has a certain perspective of the facts. That perspective is exactly what each and every lawyer tries to convey to a mediator, arbitrator, judge, jury, and even to the opposing party. Lawyers use different methods of accomplishing this goal. Some get it right and many don't.

I've seen lawyers hammer away at certain facts in front of a jury. They repeat those facts. They stress those facts. They physically highlight those facts and then berate witnesses with those facts. The facts are jumbled and out of order as an attorney jumps at any opportunity to "set the record straight." Unfortunately, this approach only works if your opponent is doing the same poor job at explaining his case. Many attorneys feel that you either have the facts or you don't and in a case where the facts are "clear," justice MIGHT be served even if the jury doesn't quite get what you're talking about.

On the other hand, I've seen attorneys skillfully weave facts based on a framework (that starts in the opening statement) into a cohesive story. Everything contributes to that theme and that story. The witness lists, the questions, the cross-examinations, the marking of evidence, all of it is aimed at fleshing out the story or the perspective of that case if you will. Granted, attorneys don't always have the luxury of having everything go according to plan. Witnesses are brought in out of order, testimony is bumpier than expected, or judges make unexpected calls against them. A skillful attorney that knows his/her story, however, can use an obstacle to his/her advantage and make it stay in line with the overall theme or story.

What I'm about to say right now will shock some people, but I'm sure most would agree. A lot of cases are not won on the facts. They are won by the lawyers presenting those facts. Is that justice? I guess that depends on your definition of justice. At the bare minimum, it's how our advocacy-based system works. I've seen lawyers walk away with settlements in the millions that they probably didn't deserve simply because they were better prepared and had a better story to tell than the other side. I've seen juries give awards simply because one attorney was more likable than the other. Like it or not, that's the world we live in and the system we work with.

With that in mind, lawyers need to advocate for their clients using more than just a set of documents that might support a case. They need to use their speaking skills, their charm, their ability to create a story from jumbled facts so that a jury can relate to it. It's that exact concept that we keep in mind when we at WIN Interactive consult on visual communication strategy. Our President, Brian Carney, Esq. likes to ask lawyers a question when he meets them. It is: "What is the job of every lawyer?" I'll tell you the answer in case you ever meet him, but don't tell him I told you! What he's getting at is that every attorney's job is to be a storyteller. That doesn't mean making things up, but it does mean organizing your facts so that they tell a story, selecting the most critical facts so that the story is concise yet persuasive, and then communicating those facts to another person in a way that is engaging. The organization, selection of critical facts, and then communication of those facts (visually) is where we come in (i.e. the place where a case lives or dies).

Check out this photo to the right:

This photo represents the majority of cases that make it to trial. Cases often go to trial when opposing parties are so sure of their claims that they are willing to risk it all in court. Both sides feel that they have valid, persuasive arguments to make and the facts support those arguments.

The question in this photos is: "Is he going or coming?" Just by looking at the silhouette, which is it? The argument that he's going or coming are almost equally powerful based on the silhouettes alone. This is an optical illusion and a question like this would often come down to, which person making the argument seems more believable (i.e. which attorney do I like or trust more?).

Now look at the image again and read the words. It says that "He wends his way to see the Game on Bloomer Day (emphasis added)." Arguably, the "he" is the man on the horse because he's the only person in the picture, though another argument is that "he" is the dog, but that sounds like a weak one!

Then, again, look at the picture and see what it says in the background. "Boston Bloomer Girls vs. Local Nine." This would seem to indicate that the background is the arena for the game and that Bloomer Day relates to the Bloomer Girls. Again, just an argument, but suddenly it seems much more persuasive that the silhouette of the horse-rider is heading away or "going" towards the tent structure in the background. A prepared attorney that knows his evidence and can explain that evidence using the visual above has a much better chance of winning his argument even when the situation seems "balanced."

Now look at the following photo (this is NOT a "photoshopped" image - it is a real photo):

This next photo represents what I would call an unbalanced playing field. Let's pretend that the argument here is that the man in this photo is either a giant or he is an evil wizard that has magically shrunk this poor woman (for the sake of illustration, suspend your disbelief for the moment and go with the fantasy that something like this is possible).

The argument against is that this is a lie and, in fact, nothing is as it seems. The two people are really the size of average people.

Unfortunately for the party arguing that these people are normal sizes, the image does not support that theory of the case. At least not from this perspective.

Now look at the following picture...

In this picture we can see that by simply looking at the image from another perspective, the trick is revealed.

Imagine, however, trying to explain this trick to someone WITHOUT the use of the image to the right. The other side has the picture above and you are stuck using your words to explain the issue. It's an uphill battle that you might win, but why not level the playing field? Take your own camera crew out to the scene and document it from perspectives that support your argument. Create a 2D or 3D graphic that explains the process of the trick step by step and then show (perhaps in a 3D animation) how the image changes just by adjusting your perspective. That's a perspective worth sharing and educating a jury with.

Your job is made much easier when you not only know your facts, but you know how to present the evidence in a clear, convincing way.

Whether you're on a balanced playing field or facing a potentially uphill battle, both cases require an attorney to utilize all of the tools available to him/her. That means mastering your evidence in full, selecting critical facts to shape your story efficiently, and then communicating those facts in a clear way using verbal and visual communication. Sometimes the perspective you start with is not always the perspective you have to be stuck with.

Thursday, April 21, 2011

News and the Media

The use of media is seen in every facet of life now. With documentaries, movies, television shows, social networking and simple communication we have become dependent on updates to our phones or reminder pop-ups on our computers. Watching Chronicle on channel 5 the other night, I was mesmerized by the way we are learning now, I learned more in the 30 minute show about “What’s new in Boston” than in my 5 years living downtown Boston. The show serves as an educational tool for viewers. The news from our local areas is now updated every 15-30 seconds online, with breaking stories, video postings, tweeting and live broadcast; you can never miss a beat of what is going on out in the world even if you are at a desk or behind a computer for the majority of the day.

I remember only watching the news at 5 and 6 o’clock when I got home from school before dinner time, now I receive updates on my phone, have a news app, and can be online for 5 minutes and be caught up on the days stories, crime reports, scandals and gossip; and hour later things have already changed. The world outside is non-stop and now so is media sources that have become conveniently at our fingertips with the click of a mouse or a touch on our phones.

With newspapers being an “outdated” source of receiving the news, most papers like the Boston Globe, NY Times and Herald now have full websites where their readers can be caught up without reading a large, oversized black and white book. Will newspapers be replaced by apps and websites? For right now people are more caught up and involved in everyday news, stories and reports about their own areas, state, country and world than ever before because of the media advances and the convenience, availability and being able to avoid paying the $0.75 to read a paper when you can jump online and be caught up by reading the headline stories on the first page. The design of most websites are great too, because the top stories and important messages are flashing in front of your face as other news is presented in videos along with other story headlines are strolling through in the news ticker. It is a consistent flashing of news that consists of the most notable stories of the day, week, and month. These convenient ways have allowed my generation to become more knowledgeable and up to date with current events, even in areas of politics, where most 20 to 25 year olds have no interest in.

These media advances and convenient ways to get caught up on everyday news has really made newspapers an outdated source of receiving news because technology has surpassed the black and white text.