Mission: Possible

Unless you've been living under a rock or in a cave you undoubtedly have heard about the death of Osama Bin Laden. Codenamed operation: Neptune's Spear, the raid on his compound was a 38 minute mission executed in total darkness by Team Six with one main objective. This precise and thoroughly planned out mission took months of preparation and top secret technology.

What I find most intriguing about the raid is the technology that the elite team of navy seals called Team Six used to swiftly get in and get out undetected before anyone even knew about it. A team so highly ranked that you can't apply or sign up to join, you have to be recruited. This team is one of the United States' two secretive Tier One counter-terrorism and Special Mission Units; the other group being Delta Force. Before the world knew about this event, technically, they did not exist. Utilizing stealth drones, hyperspectral image sensors, miniaturized high definition helmet cameras, terrain-following radar, surveillance systems, top secret stealth helicopters and much, much more, they were able to infiltrate and exit without a hitch.

As of right now mention of only some of the high tech equipment has been released to the public and media. The rest is classified to the highest extent to keep away from enemy intelligence. Every bit of equipment and tech used in this operation was stealth based and completely undetected by radar. While Team Six was nearly invisible, everything in and around the terrorist compound was completely visible and detectable to them through the use of hyperspectral imaging. Hyperspectral is the spectrum of light that our naked eyes cannot see and is above or beyond the spectrum that we normally can see. We are only able to see a small sliver of the light that bounces of objects, but with the help of the right devices and an expert staff of people backing them up behind the scenes, we can expose objects and people that don't want to be in sight. Such as the case with this mission.

How does this relate to our legal practices here at WIN Interactive you might ask yourself? Well, we specialize in using the latest advancements in technology to create and display a series of events, bringing documented evidence to life. A lot of the technology released into the public for business and personal use originates from governmental purposes. For instance, what is now known as the internet originated in 1958 from a network of radar systems to further advancements in research for the US to regain technological lead after the USSR launched Sputnik. This then lead to the interconnection of computers that linked different areas of government together to ensure the survivability of communication networks.

A technology such as hyperspectral imaging would be of great value to the creation of court room presentations. The ability to look under the rubble of a collapsed home or seeing in the rooms of a condemned building that aren't safe to be inside of, would be extremely useful. A 3D artist would then be able to recreate how the place once looked or looks at that particular time without getting in harm's way. We might not be using stealth drones and hyperspectral radar sensor equipment for courtroom presentations, but it's likely that derivatives of some of these classified technologies will one day trickle down into practical uses that we can implement into our high tech demonstrations here in the future at WIN Interactive.

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.

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.

Expanding On Courtroom Technology

With the ever increasing popularity of smartphones, the tablet is a fancy mobile device that is a cross between a laptop and a smartphone, with a promising future.

Launching in April of 2010, Apple was the first to make the tablet idea mainstream with the release of the iPad. The Samsung Galaxy Tab was released next in late 2010, followed by Motorola's Xoom in early 2011, and releases throughout the remainder of this year will be from HTC, ASUS, Blackberry and HP.

As these devices acquire more software applications, they become more practical for a wide variety of uses. Working in the field of litigation, I've noticed that there potentially is a land of opportunity with tablets. Being just a skinny slate, they are much easier to transport, very thin and very light weight. This also helps with the battery life making it last longer than most any laptop. One of the most important features in my mind is the camera. Taking a picture or video and then instantly being able to view and edit them on the screen would drastically help speed up the preproduction process of multimedia cases.

The major implementation towards production that comes to mind is the ability to write or draw on photographs immediately after taking them. This would come in handy when recording measurements of a structure or distances between objects at the scene of an accident. Normally you would take photographs and write down the measurements separately on a sheet of paper, but this can sometimes create a disconnect and can also be much more time consuming when implementing the measurements later on. For instance if you were recording measurements of a building for 3D presentation you write the measurements directly on the photograph.

Another use for tablets in the legal world that I foresee as being very beneficial is during a courtroom trial. What if each member of the jury had a tablet which they could use to interact with a 3D presentation? What if each person in the jury could choose what angle they view an accident from by moving around the screen at just the touch of their finger? However, there may be some objectionable admissibility issues between the presentation of the lawyer and what juror has control over while interacting with it. Even schools now are considering replacing their classroom books with tablets because of the wealth of information you can have at your fingertips. With developing 3D technologies now being implemented into screens and all sorts of creative software being put out by developers I look forward to the progress of tablets in the future.

If You Can Draw It, You Can Use It...

In my experience as a litigation consultant for the past few years, I find that many clients often express concern over the use of demonstrative evidence, graphics, interactive multimedia, or visuals in general at trial. The most common question is whether or not a visual is admissible. Generally, the answer is simple: It depends. While the answer is simple, the meaning of that answer obviously isn't.

Yes, there are many kinds of visuals that are inadmissible and require objection. At WIN Interactive we tend to pride ourselves on not only knowing how to create admissible visuals, but also how to rip apart an opponent's visuals with legal argument. In a borderline demented way we actually find it fun!

Nonetheless, I'm not going to get into all the intricacies involved with creating more complex visuals with admissibility in mind. I want to keep this post simple and offer some of you a very useable rule of thumb. Basically, if you can draw it, you can use it. What I mean by that is even if you can't get a visual marked and placed into evidence, you can still often use that visual as a chalk. In fact, most of the visuals used in trials today come in as chalks. That means they may be shown to the judge and jury for explanatory/educational purposes in conjunction with a witness , but the visual itself often is not considered evidence.

I like to think of the term, "Chalk," literally. If you had a blackboard in court and a piece of chalk, you could draw or have your witness draw elements of a person's testimony in order to keep track and highlight certain portions of it. I worked on one trial in San Antonio, TX where the lead attorney on the case used a blank piece of paper, a felt tipped marker and an ELMO (document camera device) to draw while a witness testified. The effect was that he was teaching the jury while a witness testified. Some courts around the country might not have the patience for this sort of step by step approach, but the majority of judges would be hard pressed to refuse you the use of a blackboard, whiteboard, or large pad of paper on an easel.

Keeping that in mind, when faced with a judge's misplaced concern over a visual image, the go-to argument should be to ask the judge whether you would be permitted to draw the image on a chalkboard and use it as a chalk. Look at the three following examples of images:

This image is how a person might draw a basic house on a chalkboard. Even a person with high artistic ability would probably not fair much better considering the speed with which one might need to draw while on the spot at trial. This is very likely admissible as a chalk.

This next image is the same basic house, but drawn using a computer program. Already there is an improvement because the lines are straight and the background is white. People are more used to white paper print-outs or computers today since not many people (other than maybe schoolteachers) use a blackboard anymore.

In this last image we have clearly skipped a few steps in between, but I just wanted to show you how you could go from a blackboard drawing to a high quality 3D image (not an animation -- that's another story) while still remaining within the same chain of logic. The only difference between these images is the medium used to create them.

If you can use an image that you can crudely draw on an archaic blackboard then why can't you use a clearer, much more educational image to accomplish the same goal? Please keep in mind that what you do with an image is even more important than the image itself, but that is grounds for a much longer discussion and I want to keep this (perhaps overly) simple.

The basic point I'm trying to make is that just because a judge or an attorney may not understand modern technology and graphic design, doesn't mean that the objections are founded. Really, the objection (in most cases) is one made out of fear of the unknown and erring on the side of safety. The best thing an attorney can do is to hand-hold the objector on a logical path that takes him from what he knows to what he doesn't and shows him that the two aren't that far off.

So, again... while it isn't a hard-line rule... if you can draw it (or have someone else draw it for you)... you can use it. Ask yourself these questions about your visual:

1) Is it corroborated by a witnesses' testimony and/or facts already in evidence?

2) Is the drawing a fair and accurate REPRESENTATION (i.e. it doesn't have to be to scale, etc.) of the facts/testimony?

3) Is it educational and helpful to the jury to understand a potentially complex issue?

4) Could I have drawn this on a blackboard (albeit poorly)?

Answering, "Yes," to these questions gets you off to a good start!

Keep that in mind the next time you plug your computer in for trial and someone gets an incredulous look on his/her face...

Learning through tutorials

Tutorials are very important no matter if you have an entry- level position or are an “expert” in your field. You can learn from one another and the presentation of information they relay. Tutorials can be found online for numerous programs, tasks or projects. But learning from other people can hold more meaning and help you comprehend things that you may not understand or have difficulty with. Tutorials are defined as something that provides instruction in a particular area. However, beyond following an instruction guide online or reading a step-by-step book, we can learn from others and become much more effective. At WIN the legal team works together on many cases that come before us, however certain individuals hold expertise in fields such as multimedia, programming, 3D, graphic design and web page design. However each individual is in constant communication with one another and learn new ways of doing things that are effective and less time consuming.

Learning from your peers can be very beneficial for the individual and the company to grow. A simple tutorial or textbook can spark the desire to learn a new concept of your expertise. If another person can explain a concept better to you than watching a 10-minute video than the knowledge is more useful because the person is speaking about his or her own experiences.

Learning from your peers is a useful way to build communication skills and learn new concepts, ideas and receive constructive criticism in a way that has a lastly affect on the individual and their work. Presenting what you know or examples of your work can allow your peers to understand visually the ideas and projects you are working on; rather than reading a report or notes. The power of communication, networking and visual presentations will surpass texting, phone calls and social networking because the one on one communication and relay of information is that much more effective and leaves a lasting impression on the individual.

i-Pain

In one of the episodes of Dragnet, which aired in the 1950's, it took a severe toothache and his partner's nudging to finally convince Joe Friday to approach the pain-filled potential of a dentist's chair. [Click here to see "The Big Frame"]. It is natural, people will avoid pain whenever possible. Avoiding pain, in fact, is one of the two basic motivators of people. The other is gaining pleasure. Pain, however as Joe Friday's behavior indicates, is said to be a much more effective motivator than pleasure. In fact, "actual" pain is not required for motivation, just the mere threat of pain -- the potential for pain.

I recently encountered a situation where merely the threat of pain was enough to ensure compliance with a simple request of mine. As they say in Dragnet, "Ladies and gentlemen, the story you are about to hear is true. Only the names have been changed to protect the innocent."

So, I'm in a toy store buying my son a toy. The problem began when several store issued coupons were not calculating the proper discount in the store cash register. No matter how diligently the store clerk worked at entering them correctly, she could not seem to calculate the proper discount. The scanner wasn't working properly ... the coupon was printed incorrectly ... or some combination of the two. The store manager was called in to help resolve the discrepancy. Her unpleasant demeanor indicated to me that she must have missed the customer service training program when they offered it to her. The simple request I made was to give me the discount and figure out the problem with the coupons later -- after my son and I are long gone from the store. The manager's "solution" to my dilemma was to tell me that I could go home, call the 1-800 customer service line, and solve the coupon problem myself. Her attitude was, at best, unhelpful and her demeanor unpleasant.

i-Phone to the rescue!

I pulled out my i-Phone and she naturally thought I was taking her suggestion to call the 1-800 number myself. I started an app that turns your i-phone into an audio-recorder. I told her: "This is recording now … would you like to say that again to me (and she knew what I really meant was -- in the demeaning and disrespectful way you just said it to me a second ago)?"

Instantly she changed her demeanor and in minutes my coupon problem was solved -- by her, with a smile on her face, and a free balloon for my three-year-old son. I really didn't do much other than provide a vision of potential pain to her imagination. The pain of the possible recording of our next few minutes together possibly being played back to her boss (someday in the future) was motivation enough. Interestingly, her pain was self-imposed. I didn't have to make any threat. Just attempting to record the rest of our conversation was enough for her imagination to kick in.

Her desire to avoid "potential pain" reminds me of a situation I have seen in my legal consulting work -- the pain that is created by one lawyer who effectively uses cutting-edge demonstrative evidence against an opposing lawyer who doesn't use technology at all. My experience here in the northeast is that lawyers new to the use of presentation technology, often don't contemplate using technology until they are faced with a big case or until they encounter the pain of seeing their opponent using it. Those , however, are really not the ideal times to start learning how to employ visual communication.

At trial, I have personally witnessed the opposing client (as we are wheeling into the courtroom several pieces of electronic equipment) ask his own lawyer (opposing counsel), if they will be using similar technology during the trial, as well. Knowing my opponent's expected answer ("No,") and watching him try to come up with an explanation to his client why none of that equipment is necessary, is actually painful for me. At mediation, I have also witnessed very good lawyers, after having been confronted with a devastatingly powerful visual presentation (which demonstrates our client's command of the facts, and ability to professionally and effectively present the evidence), feel the need to explicitly address the disparity, attempt to downplay the use of technology, and justify to the mediator why they didn't prepare an electronic presentation of their own.

How satisfied are you with your current use of multimedia technology? Do you need to wait, like Joe Friday until the pain is overwhelming to embrace the new technologies available to trial lawyers today? Or are you leading the way?