Transcript:
Adam Bloomberg: Hello, I’m Adam Bloomberg, Senior Client Success Advisor at IMS. Today we’re talking about a new change to a rule that shapes how trial lawyers think about demonstratives and visual strategy at trial: Federal Rule of Evidence 107.
Before we start, if you're watching the recording of this video, please like and subscribe and all that to our LinkedIn and YouTube channels.
Joining me today are my colleagues Michelle Cooper, a trial consultant who recently published an article on this subject, and Chris Dominic, Senior Strategy & Jury Consulting Advisor. Chris, Michelle, it’s always a pleasure. Handing it over to you.
Chris Dominic: Thanks, Adam. And hi, Michelle. How are you doing today?
Michelle Cooper: I’m doing great. How are you doing, Chris?
Chris: Doing great, thanks. I was just reading the article that you recently published, where you place the reader directly in the jury box, overwhelmed with unfamiliar terms and complicated facts, and nothing visual to help organize the way. From your time as a practicing lawyer, back where you're doing securities stuff, was it clear how differently jurors processed information compared to your colleagues on the trial team?
Michelle: Sure. You know, it’s funny is, when you're in lawyer mode, it isn't that clear, which is why us consultants have a job, because lawyers are just instinctively thinking about things in a very logical way, right? They are walking through timelines, looking and trying to explain evidence piece by piece. It's very technical. And unfortunately, we shouldn't really be leading a complex or technical case on logic alone.
And when you work with juries, as I do much more now as a consultant, you start to realize that they're juggling dozens of names, dates, technical details, and yet they oftentimes have nothing to anchor themselves visually. And unfortunately, lawyers, they get to be with this case for months, sometimes years, oftentimes years. And the juries, they only really have days, weeks, something like that, to try and piece together all of the different important components of the case.
And without visuals, they're essentially being asked to build a mental puzzle while the pieces keep changing. And although some jurors are focused on the logical aspects of the case, others are really using common-sense reasoning. And so there is quite a difference that becomes clear the more you work with jurors.
Chris: You've seen this issue from both sides, first as a trial lawyer, now as a trial consultant, helping attorneys design demonstratives as a part of broader strategy. How has that dual perspective changed the way you think about visual advocacy in modern trials?
Michelle: That's a great question. When you're a lawyer, you're really thinking about legal completeness, right? I think you and I have talked about this in the past, but a lot of lawyers are trying to be in this mindset of, “If it's really important, I have to say it. Every element, every citation, every fact, it should be on the record. That is the that is of utmost importance.” And when you start to move towards consulting and helping advise these lawyers, especially what I do mostly, which is visual advocacy, we start to explain to them that jurors are not experiencing information in the same way that we are. And they're not reading a brief, right? That's what the judge does; they tend to read briefs before you get to trial. But they're processing a story in real time. That's why, oftentimes, trial work and jury consulting, you know, it's about helping them tell an effective story. And so, the shift, it turned from “What do we need to include?” to “What will they actually remember?” That is the key.
And so when you design demonstratives, you have to confront that question. Put the argument on a slide, timeline, or a graphic, and you will immediately see whether or not that idea is clear, visual, and intuitive. And that'll only work if someone has to explain it in those five minutes or in that snapshot view when you see the graphic. And so you start to appreciate structure and visuals, and how they guide the juries more so than just relying on logic alone. And so, it helps these jurors organize the facts in their head. It makes it, and what I really like to think about here is designing the most effective learning experience for the jury. And so that is the big takeaway there.
Chris: Love that. Rule 107 tries to clarify the difference between illustrative aids and demonstrative evidence. But historically, that distinction has been confusing. Why was that line so murky before, and what problems did that create for trial lawyers?
Michelle: Well, you know, when you think about it, even in today's standard, the type of technology we have in the courtroom and types of visuals, PowerPoint, you know it, it keeps changing. It keeps progressing, especially now with AI even thrown into the mix. So, you know, those were tools that didn't really exist back in the day. So as times have changed, we've had to start to define or make clearer lines in the sand between actual evidence, demonstrative evidence, illustrative aids. And I think it is really important to first understand why the three are quite similar. And that's why the distinctions are hard to make.
You know, actual evidence is what we think about, even like what you see on TV that goes put into evidence is, you know, an e-mail, a photograph, a physical object, something that is actually tied to the case actually, and it is a proof, or is used as proof of fact. And then you've got demonstrative evidence, which is typically characterized under Federal Rule of Evidence 1006, and that is when a party presents summaries, charts, or calculations of voluminous records to help make it more practical to understand the evidence. And those two tend to be admissible. And now as Rule 107 has come out, that's when we've now started to see illustrative aids possibly going into the courtroom. So an illustrative aid, which is not just a piece of evidence, and it's not like a chart that compiles evidence into something that's more understandable. It is usually purely instructional.
So we're talking call-outs, simple graphics, concepts, analogies, one of the old talks that you and I have had, right? Anything to help the jury truly understand quickly in a persuasive manner. So not just educating, but also persuasively doing so. And up until recently, illustrative aides were not allowed into the jury room because they tended to be, you know, probative, prejudicial, like they weren't probative enough, more so prejudicial. And so we've now started to see that switch as this distinction has been drawn.
Chris: So I, as a jury consultant for many years, I remember telling attorneys, there's going to be hopefully one person on this jury, maybe two, who, in addition to being a note taker, they might be a drawer. Sometimes they're a drawer and note taker. And so sometimes you get lucky, and they'll draw your timeline, you know, and they'll bring it into the, you'll get that into the jury room through the juror's notes. But you're talking about something where that's a real possibility through the rules as opposed to through the luck of a juror who draws. Which is, so one of the biggest implications of Rule 107 is that these visuals, if you set it up right, could potentially go back to the jury. Can you set that up for us?
Michelle: Sure, sure. Absolutely. So Rule 107 is starting to recognize that some visuals, especially when they fairly and accurately reflect admitted evidence, can actually be admitted and considered by the jury. So, it makes a broader shift between just visual summaries and graphics, but it allows us to have complex information sifted through those two mediums. And so, they will help aid jurors in the deliberation room with making sense of the evidentiary record.
The key is that if you have a chance to get some sort of graphic or illustrative aid in through to the jury room, which remember, we've now switched our thinking that it's no longer, you know, what can I say in the courtroom, but what will the jury remember? And it's obviously easier to remember things when you have the aid in front of you, versus them just kind of going off of their memories, which we know our memories aren't always the strongest. So that means that if you do want it to go through, you still have to pass through this, you know, prejudicial probative Rule 403 balancing test, in which what you are putting forward still must be accurate, neutral in tone, and it has to be clearly tied to the evidence.
Because you no longer just have a lawyer standing next to that aid and being persuasive when they're telling their story. It's now in the room without the lawyer present and being used for whatever way the jury wants to use it. And that could potentially be very problematic if it is too persuasive or too argumentative. And so, you have to start now putting an extra layer on top of your visuals and thinking, OK, but is it neutral enough that it will not cause prejudice against my opposing party and actually, but still aid me on my side of the case?
Chris: So I was thinking about all the years, and the jury wouldn't start deliberating. And fairly quickly, it was not unusual for something to come back to the judge that says, “Can we have the timeline, please?” And the judge says, “No.” And there's kind of a collective “wah” from the room, right? But you're just talking about a new age here where potentially that could be different. So what separates a juror-friendly timeline from the types of timelines lawyers typically create during case preparation?
Michelle: Absolutely. So the timelines that lawyers are going to use to help them kind of navigate the case is very dense and overwhelming because it usually has every document, date, footnote, everything you could ever need in the lifecycle of this case in this matter, kind of all at once. And although lawyers are very, they're very gifted at being able to compartmentalize and see all the facts as they go, and so it's not too overwhelming for them, but for a jury it might be.
They won't really know what's being emphasized, which states are really the key dates, what should be taken back with them. And so it needs to be more simplified and actually more visual. It has to focus on only key events, possibly showing some sort of cause-and-effect relationship. You want to use clear labels, color-coding, we always love color-coding, spacing. Sometimes we do the double-decker, right? The top means one thing, the bottom is something you find out later. You know, something to make it captivating and persuasive, because what matters most is the jury understanding.
And so the best timelines, we always go back to, they always read like a story. What is being told? What is the story being told by this timeline? You want to see a build-up, turning points, resolution, and secrets being told, you know, things like that. And that way, they can internalize the sequence without a lawyer guiding them every step of the way. It's a great tool for thinking and reasoning that helps them in deliberations.
Chris: OK, so the rule is a strategic gift, but only if used carefully. Let’s flip this over and show the dark side of it. What’s the most common mistake lawyers make with visuals that could jeopardize their usefulness under Rule 107?
Michelle: Ooh, that’s a great question.
They will typically make it too persuasive, right? They won't, they will not aid on the side of caution. They are not accurately tying it to admitted evidence, and they're at times exaggerating it, right?
Like these lawyers, and it makes total sense, right? Lawyers are eating, sleeping, breathing these cases, and times are sometimes combative with the other side. And so you know, as much as, especially when you believe in your client, when you're a true advocate, you want to show all of that and show that the other side is not, you know, telling the truth or isn't showing the full story. And that can lead to too much argument, and that will most likely not be going into the jury room. Actually, highly likely, not going in the jury room.
And so you want to be able to persuade the jury by making the facts obvious, not at a realizing, then going forward, right? You want to be clear with labels, consistent colors, intuitive layouts, if you really want to guide them through clarity and structure. That's the key.
Chris: OK, I’ve got a closing question for you. It's the closing question you close your article with, which is, right, we're at the end.
Michelle: We’re at the end.
Chris: Rule 107 ultimately demands discipline. If a trial team adopts what you call a Rule 107 brain set, what does that look like from early case strategy all the way through the closing?
Michelle: Yes. And I love that you said that, from early case strategy, because this should be done kind of way before, you know, you even get close to trial, right? You want to start thinking everything visually from the beginning. So, lawyers, they need to take back that intention matters. If your intent is to have jurors take it back and heavily rely on these while deliberating, then you're designing every visual as if the jury might take it home, right?
It's kind of like everything you write might be seen by the big boss, right? You're going to think about it from that lens. So that means clarity, accuracy, and connection to admitted evidence has to come first. And persuasion actually takes the back seat. But if your intention is in fact to make a super punchy argument while putting on your case or telling your story, then persuasion is your top priority, because not admitting it into evidence tends to provide a little bit more freedom. So, if you want to be more creatively free with your story, then you know, by all means, it just won't make its way into the jury room.
So as you're doing that, though, remember, you have to keep a watchful eye for that balancing test, the Rule 403, because if it's too prejudicial, it won't even be allowed that much into argument. But there is something to be said about, you know, letting the elephant in the room, even if it's not admissible, the jury might have heard it. So who knows? But you want to keep mindful of the rules at that case.
So, all in all, a disciplined visual, it shouldn't just support the argument in the moment. It has to survive scrutiny and help the jurors reason through the facts on their own when they make their way back there. So this tool is super helpful if that's what you intend on doing at the end of it.
Chris: Love that. Michelle, thanks so much for your time today. Great talking with you.
Michelle: Thank you.
Chris: Adam, it’s all yours.
Adam: Michelle, Chris, thank you again for your time. I really appreciate it. And for all of you out there, thank you for sticking around. If you’d like to see more content like this episode, remember to like, follow, and subscribe to this channel.
Thank you to our guests for speaking with us today. To discover how the IMS team can help give your case an edge, check out imslegal.com or shoot us an email at contactus@imslegal.com.
