McElhaney On Litigation

Language Has Its Limits


Mike Pirelli was still several weeks from trial when he asked Angus to take a look at the heart of his case: the examination of Mike’s client, who was in a $2 million fight over the tangled sale of a private trash collection company.

So Angus set up a mini mock trial–just opening statements and the direct and cross examination of Mike’s client. Beth Golden played the part of Mike’s opponent. I came along to run the video camera and rule on any objections.

After we finished taping, Mike’s client left and we started talking. “Well, what do you think?” said Mike. “Will my theory fly?”

“Your theory is great,” said Angus. “It’s your direct examination that worries me. You covered everything–all the facts, anyway. And you didn’t open any dangerous doors so far as I could tell.

“The problem is not what you did–it’s how you did it. There was nothing but talk and a handful of papers for two and a half hours. Just words. Spoken words. Transitory sounds for 150 minutes, with nothing for the jury to look at but you and your client.”

“Well, what did you expect?” said Mike. “This is a commercial case. A contract dispute. It’s all about words, ideas, the parties’ intentions, and what they wrote in a bunch of letters and a contract. This isn’t a triple ax murder with gory pictures or a traumatic amputation in an industrial accident. It’s a business case.”

“I understand,” said Angus. “Broken promises, economic treachery and a $2 million loss to your client, not some physical trauma. But that doesn’t excuse forgetting one of the most important roads into the minds of the people who are going to decide your case.”

“I know where you’re headed,” said Mike. “You want me to concoct some kind of demonstrative evidence–create a visual dog and pony show to keep people entertained during the trial.”

“It’s not entertainment,” said Angus. “It’s effective teaching. You’re supposed to be the guide who will lead the judge and jury through the thicket of the facts so they will see for themselves that your client has been done a serious wrong.”

“I don’t have any problem with being a guide,” said Mike. “It’s just that there isn’t anything visual about this case, and I don’t want to look phony, contrived or made up. I’m not some hotshot plaintiffs lawyer like Flash Magruder.”

“The point is not to be phony or contrived,” said Angus. “It’s to take advantage of how people’s brains actually work.

“Dr. Patrick Sweeney of the Neurology Department at the Cleveland Clinic checked out the medical literature for me,” said Angus. “It says that 70 percent of the normal human brain is devoted to interpreting visual images. You’ve got to take advantage of that 70 percent.”

“But not everybody learns best by looking at pictures,” said Mike. “A lot of us like to read and mull over what the words really mean.”

“That’s one of the reasons why David M. Malone, a litigation consultant at Trial Run Inc. in Washington, D.C., likes asking potential jurors whether they would rather read a book or watch a video if they want to learn how to do something,” said Angus. “Their responses help him shape how he presents his case.

“But that doesn’t mean visual images aren’t important, no matter how you like to learn. Take a look at this,” said Angus, and he handed Mike a copy of The New Way Things Work by David Macaulay. “This book ought to be required study for any lawyer who is going to try a case that has difficult things to explain–like a patent case–which is why I have it with me.”

“This is amazing,” said Mike, his face buried in the book. “This guy Macaulay is a genius. He explains really difficult ideas just with interesting little drawings. One look at the picture and you’ve got it.”

“Which is what your job is,” said Angus. “To be an explainer. To command instant comprehension.

“The point is: A picture, a chart, a model, a diagram, a computerized re enactment or a simple demonstra­tion is often best when you need to explain a difficult idea.”

Avoid Verbal Gridlock

“Language has its limitations,” said Angus. “there are times when mere words clog the brain. Most lawyers have a high tolerance for verbal pain that would be insufferable linguistic gridlock for anybody else.

“We are used to tugging at tangled sentences and paragraphs until they surrender to reason. We actually enjoy it. How else could we stand to read what other lawyers write?

“But real people won’t tolerate what we deal with all the time,” said Angus, “so there is a rule you ought to follow: Never rely on words alone to convey any difficult idea. For any point that is hard to follow, use some kind of visual aid as well. The artistry, the creativity, lies in figuring out how best to do it.”

“OK,” said Mike. “Say I agree with you. Where should I start?”

“Two things occur to me right away,” said Angus. “First is showing the jury how important the availability of the Westbrook landfill is to the sale of this company.

“Second is untangling the twisted web between the problems with the landfill and Jack Burnham, the guy who sold your client the business.

“Some jurors are going to have trouble believing that a person who was selling a business would have a whole sabotage system ready to start undermining the company as soon as the papers were signed. Motive is essential. So is how he did it.

“There are at least nine different people in the chain between Burnham and the West­brook landfill, and it’s almost impossible to keep their names straight, much less understand what each one did.

“And if you don’t get the jury to connect Burnham with the landfill problems, you lose.”

Mike sat there for a minute. Then he picked up The New Way Things Work again and looked at some of the pictures. “I’m sold,” he said. “How do I do it?”

“You’ll need to work with a good graphic artist,” Angus said. “I know one who’ll be perfect if she’s available. She always has five new ways of picturing an idea that I hadn’t even thought of. I’ll give her a call tomorrow morning.

“But don’t think getting some neat charts and diagrams is all there is to it,” said Angus.

“Think about your documents. You’ve only got one contract and about two dozen letters. But not one of them is really what you’d call a smoking gun.

“Your job is to make the key words jump out at everybody. One of the best ways to do that is with a video presenter. You just lay the document on the table under a little camera, and the document shows up on the video screen. Then you can zoom in on the important language so everyone can read it.

“And while you’re at it, get one of those new light pens. They’re called ‘John Madden pens’ because they let you draw colored lines on the video screen from where you’re standing so you can circle and highlight key words without actually marking the document.

“Work with your graphic artist on this,” said Angus, “because the words and phrases you circle should go on a chart that has two parallel columns: ‘What Jack Burnham said’ and ‘What Jack Burnham did.’

“You can either fill out the chart during direct exam of your client or have it already filled out and uncover each entry as you go.”

“Now, there’s another problem,” said Angus. “Your client does not seem as personable as Jack Burnham did in his video deposition. Visual aids can help offset that by encouraging the jury to focus on the pictures of the facts rather than just staring at the witness. Besides, a well coordinated package of exhibits will make the jurors feel they’ve figured things out for themselves. People like their own ideas.”

Seeing is Believing

“Then there is what i call supporting demonstrative evidence pictures that make things seem more real but aren’t essential to proving your case. For example, a few photographs of your client’s garage, some of his garbage trucks and a shot of the landfill might help the facts come alive. You could also have some specially colored maps that show your client’s territory.”

“My gosh,” said Mike. “You’ve thought of everything.”

“Hardly,” said Angus. “In a few weeks we’ll do this again and see how it fits together. In the meantime, work on using the language of visualization in your direct examination questions.”

“The language of visualization?” said Mike.

“Absolutely,” said Angus. “Using words or phrases like let us see, show, explain, take us there, give us a picture, demonstrate, illustrate and visualize in your questions will help the judge and jury become eyewitnesses to your facts.

“And if they see them, they’ll believe them.”

McElhaney at his Best The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s March 1999 issue under the headline “Reel Time Testimony.”


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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