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.
