Visualization: See what I’m saying?

As published in The Chicago Daily Law Bulletin
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With my very own eyes, just 5 feet away, I saw Siegfried and Roy make a snarling tiger appear out of nowhere. I saw it materialize and I believe it happened.

Lots of people believed O.J. Simpson was innocent because they definitely saw that the glove didn’t fit. Many death row convictions have been overturned even though eyewitnesses definitely believed what they saw. One emoji delivers an entire message.

And hear this: A 2013 study published in the Proceedings of the National Academy of Sciences used an experiment to see who could better identify the winners of a musical competition.

The group that did best was the one which received silent video footage of the musicians. They more reliably identified the competition winners than the study participants who only heard audio of the performances and the group who saw and heard both video and audio.
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That study concluded people “hear” best with their eyes, not just their ears — they depend heavily on visual information to make judgments on sounds.

Seeing is believing — correctly or not. It is the primary job of every lawyer to get people to believe them. It may be a jury, judge, mediator, opposing attorney or even a client. Ultimately, a lawyer who can’t persuade will probably be pretty lonely.

We are handicapped in our ability to persuade because we’re not selling a product. You can’t open the hood and show the gleaming V-12 engine, the gorgeous wood trim and the clever cup holders.

If you want someone to hear what you’re saying, you need to give them something to see. That is every bit as true during a mediation as a trial. You are there to persuade.

Here are a few ideas to use video to get people to see your position in a mediation.

• Video of a focus group: Instead of arguing about how jurors are likely to react to an important fact, how about showing a short clip of an actual reaction?
• Video animations: These are always powerful, whether a car crash, an embolus blocking blood flow in an artery, a defective product, a resident fall, a birth injury or a construction defect.
• Video of the occurrence: More and more lawyers are bringing in video of the actual occurrence. Finding it may take some investigation. How about breaking it down with stills showing the important points including times, speed and distance.
• Video of a party: Facebook may be the greatest surveillance tool defendants ever came upon. Plaintiffs could show just one activity from a day-in-the-life-of film.
• Video from a deposition: One short and powerful deposition clip can be a knockout. It could be a key admission. It could be descriptive testimony from a witness. It could be your expert’s answer to the opposition’s key point.
• Video demonstration: Show the procedure, an expert inspecting, handling or using the subject product, a model or even a demonstration of a simple law of physics.
• Video of the artifact: Showing the broken drill, the surgical hardware, the dock plate, X-rays and CT scans with color overlays.
• Video of the scene, the lighting conditions, the traffic or pedestrian patterns, the route, the hospital, the site of the explosion, the witness’ view from the bridge or actual construction practices.
• Video of a witness: She can’t be at the mediation, but she gives a short statement.
• Video of important props: The deceased’s room, his closet, his fishing rods, his bowling ball, his workroom, his favorite restaurant.
• Video montage: A collection of important photographs. Even music or narration?
• Video from the web: There are endless examples of educational videos, maps, presentations, photos, graphs and charts.

As a practice note, your video may not be admissible at trial as substantive evidence, but you might still be able to use it as demonstrative evidence or as a basis for an expert’s opening with a limiting instruction.

Television has conditioned us to visual presentations. Movies and ads are unlimited sources of inspiration for lawyers to show opponents what they’re up against.

Do you see what I’m saying? Good. Now see to it and see it through!