Litigation Strategy Trial Strategy

Gear Your Oral Presentations to All Types of Learners

ThinkstockPhotos-465171079There are few oral presentations given today that don’t make use of visual aids. It helps with the inevitable attention wandering and it allows you to reach different types of learners. Always try to make your presentations—including opening statements and closing arguments—memorable for all of your listeners.

You can create high-tech visual aids by computer or use less technologically sophisticated visual aids by using, for example, butcher paper, blowups of documents, and white boards. Either way, research has shown that people will remember far more of what they see, or see and hear together, than of what they just hear, and attention spans to the written word seem to be decreasing. This is particularly true in a jury setting, in which there are many distractions and in which the subject matter, despite counsel’s best efforts, may be less than fascinating in some cases.

No matter what kinds of visual aids you use, there are some basic rules to follow:

  • Keep them simple and easy to understand in a short period of time;
  • Make sure that your oral and written presentation work together to enhance each other;
  • Make sure that they are visible to the jury, judge, and opposing counsel;
  • Make sure that all equipment works by having a “dress rehearsal”; and
  • Make sure that the visual aids fairly and accurately represent the evidence so that they are not excluded by the court.

Visual aids used during an opening statement are usually documents or things that are expected to be admitted into evidence or other materials that will help the understand the case better. California law is very liberal in holding that demonstrative tools used in opening need not actually be admissible.

The rules for closing argument are similar: Any exhibits used in trial may be used in closing, and other items may be used for illustrative purposes. Not only may the charts and diagrams used in the trial be shown, but those tools may be specially prepared for use in closing. The ultimate test used by the court to decide whether to allow the demonstrative aid is whether it will unfairly introduce new evidence, in which case it will be excluded. If it’s being used merely to fairly illustrate the argument, it’s proper to admit.

The range of demonstrative items used at trial appears to be limited only by the imaginations of the attorneys using them. One case approved the use of a person as a demonstrative tool in closing argument. In People v Caldaralla (1958) 163 CA2d 32, a defendant was prosecuted for assault with intent to kill, having been accused of shooting a bartender several times in the chest. The prosecutor properly used an officer as an illustrative exhibit during closing argument, in which he attached arrows to the officer’s suit to show the bullet holes, had him stand as if he had one knee on the bar, and fall down and roll over to attempt to show that the victim was shot at least twice while on the floor.

If you decided to go high tech, the expense of visual aids can be a deterrent to their use, especially if the parties can’t get a ruling on admissibility before the item is prepared. There are legions of stories of attorneys spending tens of thousands of dollars on computer visual aids or on a simulation of a car crash only to have the court grant the opposing counsel’s motion to preclude the demonstrative item because it doesn’t accurately reflect the evidence.

To deal with this issue, get opposing counsel’s stipulation and the court’s approval before spending time and money in preparing your demonstrative items whenever possible. Also keep in mind that sometimes a simple demonstrative method, such as writing on a white board or butcher paper, can be more effective than a fancier presentation of the same evidence.

Get much more expert advice on the practical and legal aspects of preparing and presenting oral arguments in CEB’s newly-updated book Persuasive Opening Statements and Closing Arguments, chap 2, and CLE program by the same title. Also check out CEB’s California Trial Practice: Civil Procedure During Trial, chaps 9, 19 for more guidance on planning your opening statement and closing argument.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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