The use of multimedia in the courtroom (part I)
By Dr. John F. Sase
Gerard J. Senick, editor
Julie G Sase, copy editor
William Gross, research
“We are all inherently visual communicators. Consider kindergarten: crayons, finger paints, and clay propelled our expression, not word processors or spreadsheets.”
—Nancy Duarte, “Slide:ology: The Art and Science of Creating Great Presentations” (O’Reilly Media, 2008)
In this month’s column, the first of a two-part series, we discuss approaches and methods for using PowerPoint (PPT) in presentations delivered by attorneys and expert witnesses in jury or bench trials. Throughout, we will address the use of forensic media that has developed from Twentieth-Century instructional technology. I (Dr. Sase) have chosen this issue because a presentation frequently gives the last impression about a plaintiff or defendant to the judge or jury before they retire to deliberate a verdict.
What are the specific qualities for which attorneys should look when searching for an expert witness? In addition to possessing relevant experience and the peer-conferred license of a Ph.D., experts who teach or speak publically tend to maintain a superb working knowledge of modern media-technologies. PowerPoint and comparable slideware have emerged as the most popular tools of these technologies in many arenas.
Though PowerPoint and comparable presentation software remain the most-used media-tools in business meetings, in the classroom, and in the court, they also represent the most abused of these technologies. In this offering, we hope to provide information to practicing attorneys and faculty that, hopefully, will help to stop this abuse in the courtroom and may aid attorneys in winning cases.
Survey Says: Americans Would Give Up Sex to Avoid PowerPoint Presentations
Eight years ago, Sliderocket Research released the results of a survey that underscores the points that presentation gurus have made about PowerPoint abuses for over a decade. Not much has changed over time. One-fourth of the professionals surveyed reported that they would rather forego having sex than sit through yet another PowerPoint presentation. In addition, more than one-fifth of respondents would do their taxes instead of attending a PowerPoint presentation. Another fifth preferred the option of a trip to the dentist. Finally, one-third of the survey-respondents admitted falling asleep at least once during such presentations.
Suppose this survey indeed does reflect the attitude of the working society at large. In this case, we must pause to ask why—especially before considering using this media-technology on a captive audience in a court of law.
However, we should not blame technology, as the primary research resounds loudly and clearly on this point. Instead, the human element provides design, content choice, and delivery of these presentations, not to mention their ultimate quality. These elements determine whether or not a presentation “turns on” or “turns off” the presiding judge and the members of the jury. Addressing this point, American author Seth Godin (www.sethgodin.com), the leading expert on the subject of presentations, wrote and circulated Really Bad PowerPoint (and How to Avoid It), a ten-page e-booklet self-published in 2001 (incorporated into his newer publications).
Godin lays the blame on Microsoft’s doorstep. He states, “Microsoft has built wizards and templates right into PowerPoint. Moreover, those ‘helpful’ tools are the main reason we have got to live with page after page of bullets, with big headlines and awful backgrounds. Let us not even get started on the built-in clip art.” More recently, Godin has written “The Practice: Shipping Creative Work” (Portfolio/Penguin, 2020), in which he states, “Creative work does not come with a guarantee. Nevertheless, there is a pattern to who succeeds and who does not. Furthermore, engaging in the consistent practice of its pursuit is the best way forward.”
Throughout his writing, Godin continues to explain that people do not use PPT as a communication tool. Instead, they use it as a crutch to accomplish three things, none leading to a good presentation. These include:
• Presenters using the PPT as a teleprompter from which s/he reads the slides
• Presenters handing out printed copies of their “slideuments” (documents embedded in slides) to the audience in order to avoid the task of writing a formal report
• Presenters using the handouts of the slide-set in an attempt to make it easier for their audience to remember everything - sort of like reading the slides, but better
According to Godin and others, the bottom-line belief is that “normal” PowerPoint remains out of sync with how human beings learn and communicate. Ugh!
PowerPoint and the Texas VIOXX Case
Though PowerPoint took on a life of its own with the help of much fertilizer from Microsoft, this corporation has joined in the battle to defeat the beast. Microsoft published one of the top books on how to avoid the problems in creating a PPT while, at the same time, providing a case study of great interest to attorneys. This book, “Beyond Bullet Points: Using Microsoft Office PowerPoint 2007 to Create Presentations That Inform, Motivate, and Inspire” (Microsoft Press, 2008), is by Cliff Atkinson, an American independent consultant to leading attorneys. In 2005, Atkinson served as the presentation consultant for the plaintiff in the case of the estate of Robert Ernst v. Merck and Co., Inc.
In this suit, popularly known as the Texas VIOXX case, Robert Ernst died after taking VIOXX, a non-steroidal anti-inflammatory drug. The jury decided in favor of the plaintiff and delivered a $253.4 million verdict. Since then, this lawsuit stands as the first of more than 3,800 Federal and State VIOXX cases that have gone to trial. In an FDA Memorandum of 30 September 2004, David J. Graham, MD, MPH, Associate Director for Science, Office of Drug Safety, cites evidence that 27,785 heart attacks and sudden cardiac arrests occurred from VIOXX before the company took it off of the market in 2004 (http://www.fda.gov/downloads/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm106880.pdf).
PowerPoint: Only an Aid
The trial in the Texas VIOXX case is especially relevant to our subject. After finding an earlier edition of Atkinson’s book online during trial preparation, Mark Lanier, a media-savvy attorney who served for the plaintiff, retained the author to join the trial team in Texas. As a result of this strategy, Lanier went to court with a full presentation arsenal in which he successfully integrated media-technology with his down-to-earth courtroom style. Lanier opened by introducing Carol Ernst, the widow of Robert Ernst, and their daughter to the jury. Then Lanier passed in front of the jurors, making eye contact with each of them individually. Knowing his audience, all high-school graduates in their twenties and forties from a wide range of professions, Lanier pushed aside the podium to put himself on a more personable level with the jury.
Standing alongside a ten-foot screen that he used as a backdrop, Lanier presented a PPT that fervently told the tragic story of Robert Ernst. Lanier transferred his emotional appeal to the engaged jurors in a choreographed presentation that projected the integration of colors, images, and words into an absorbing media experience. In rebuttal, the legal team for Merck delivered a “normal” PPT exhibit complete with bullet points, impersonal images, and detailed scientific graphs and data. The rest is history.
Form Follows Function
In order to understand how one side in the Ernst/Merck case engaged the jury while the other did not, we must begin our analysis at the conceptual level rather than at the practical. We need to start with the approach used to conceive a presentation before considering the methods of building one.
For more than three decades, I have introduced the use of PowerPoint within my teaching at the university level. In addition to developing presentations to serve as learning tools for my lectures on Economics and Statistics, I continuously have improved the integration of assigned term papers and student PPT presentations that amplify the subjects of these papers. I have chosen to do this with the understanding that, when these students graduate and enter the professional world of work, they will need to communicate what they have learned and continue to learn to a diverse audience effectively. This audience of professionals has become accustomed to using PowerPoint and similar slideware as the standard for presentations at government, business, and institutional meetings.
I tend to introduce my students to the subject of professional communication at the philosophical and conceptual levels and often do so by discussing the book “Presentation Zen” (New Riders, 2008, 3rd edition, 2019) by Garr Reynolds. In his top-down approach, Reynolds reminds us that the art of presentation – especially in professional circles – shares the same ethos with the ancient practice of Zen. To Reynolds, “[T]he essence or spirit of the many principles found in Zen concerning aesthetics, mindfulness, connectedness, and so on can be applied to our ... presentations.”
Do any of us remember American author Robert M. Pirsig’s philosophical autobiography “Zen and the Art of Motorcycle Maintenance” (William Morrow & Co., 1974)? This classic work narrates a motorcycle trip by a father and son that leads to a personal and philosophical odyssey. Their relationship and the craft of motorcycle maintenance lead to a process for integrating science, religion, and humanism.
In “Presentation Zen,” Reynolds states that the objective of a presentation is communication with more integrity, beauty, intelligence, and clarity through naturalness, simplicity, and restraint. Of course, the goal of the presentation for an attorney is to win the case. Reynolds explains that Presentation Zen is more of an approach to personal awareness and the ability to see and to discover. Presentation Zen involves restraint in preparation, simplicity in design, and naturalness in delivery to produce greater clarity for both the presenter and the audience. This approach may produce less suffering for all by engaging judges and jurors. Beyond that point, the mantle for success rests on the shoulders of the attorney.
(You save $16.00)
Our Conceptual Age
We live in a conceptual age during which communication equates to transferring emotion, not just informing. In order to accomplish this task, we must design our communications well. Furthermore, they must carry and share a story that unites colors, images, and words symphonically and in an articulate manner. Our story must elicit empathy from our audience and do so sincerely. In order to make this happen, we need to include elements of play and humor, not just for comic relief but as a counterpoint to the grave and sometimes tragic elements that one must convey to a jury. Our communication must give meaning in ways that engage both hemispheres of the recipient’s brain—the emotional, musical, and moody elements along with the dexterity, facts, and complex data. This task stands as our challenge.
Color and Images
Where may we turn for practical inspiration? Since attorneys of the old school already tend to be wordsmiths of the highest order, let us invest more page space into the other two elements of presentation--color and images. Nancy Duarte, whom we cited in our opening quote, thoroughly covers the use of color and its power in her chapter “Using Visual Elements: Background, Color, and Text.” Duarte explains the necessity of developing a consistent color palette in response to three questions:
• Who is your audience?
• In what field or profession are you working?
• As the hookah-smoking caterpillar in Alice in Wonderland and the English rock group The Who are wont to ask, “Who are you?”
Using the color-pickers developed from the Newtonian Color Wheel, Apple and Microsoft provide the platform for a practical discussion of Monochromatic, Analogous, Complementary, and other Color-Wheel relationships. These characteristics help to emote feelings that range from earthy to strong, from calm to powerful, and from masculine to feminine, to name a few. For the more daring artist, we suggest reading masterpieces by two German authors: “Theory of Colours” by Johann Wolfgang von Goethe (1810; Dover reprint, 2006), a prose view by the noted poet on the nature of colors and how they are perceived by human beings, and the lectures by Rudolf Steiner (who was greatly influenced by Goethe) from 1914 through 1924 published as the book “Colour” (Anthroposophic Press, 2nd ed., 1992). As an example of how one’s consciousness may rise, Steiner describes the polarity between red and blue, paraphrased as follows: We see the color red in sunrise and sunset because we are looking at the light through the darkness. However, the sky appears blue during the day because we are viewing the darkness of space through light. (Let that bake our noodles for a while.)
Images play a prominent role in the composition of slideware presentations. In order to understand this point more completely, we suggest that our readers watch and study the variety of high-quality documentaries produced for the History Channel, the Public Broadcasting System (PBS), the National Geographic Channel, the Gaia Channel, and other forums. These shows offer us an education on what types of images work best in presentations. In addition, the production work demonstrates appropriate use of unobtrusive zoom and movement, which help to hold the interest of viewers.
Unless the fair-use doctrine covers the pictures you want to use, attorneys or experts may need to search for appropriate images. Garr Reynolds includes a list in his chapter “Presentation Design: Principles and Techniques.” Having shopped around the sites that he recommends, I find that most royalty-free images cost less than $10.00 at sites that include www.istockphoto.com, www.dreamstime.com, stock.adobe.com, and www.shutterstock.com. In addition, a few sites continue to offer free images. These include www.flickr.com/creativecommons and www.imageafter.com. Your forensic photographer or day-in-the-life videographer may help you, especially with local stills or footage.
Takeaway
We hope that this column has provided our audience with a helpful alternative view of both the content of PowerPoint and its potential effectiveness. Therefore, we suggest studying some of the works to which we have referred as well as the successful courtroom techniques used by Mark Lanier in the Texas VIOXX case. In our next column, we will get into an even deeper discussion of how to create presentations that will hold the attention of judge, jury, and other audiences.
————————
Dr. John F. Sase teaches Economics at Wayne State University and has practiced Forensic and Investigative Economics for twenty years. He earned a combined M.A. in Economics and an MBA at the University of Detroit, followed by a Ph.D. in Economics from Wayne State University. He is a graduate of the University of Detroit Jesuit High School (www.saseassociates.com).
Gerard J. Senick is a freelance writer, editor, and musician. He earned his degree in English at the University of Detroit and was a supervisory editor at Gale Research Company (now Cengage) for over twenty years. Currently, he edits books for publication (www.senick-editing.com).
Julie G. Sase is a copyeditor, parent coach, and empath. She earned her degree in English at Marygrove College and her graduate certificate in Parent Coaching from Seattle Pacific University. Ms. Sase coaches clients, writes articles, and edits copy (royaloakparentcoaching.com).
