Originally published on The Dispute Resolver, the ABA Construction Forum‘s blog, this post covers how to construct a trial presentation that informs, persuades, and connects – whether you’re addressing a jury, judge, or arbitration panel.
The key to a winning argument is a compelling story, and strong visuals are an essential for telling that story. You and your team have been working on your case for years, and it is finally heading toward trial/arbitration. This is NOT the time to stumble at the finish line trying to persuade the judge, jury, or arbitration panel about your arguments. While this is true in any piece of litigation, the complicated nature of construction law makes this even more important.
You’ve got only one shot to tell your story, so you certainly want to make it count and make sure that your arguments are not only heard, but understood. Incorporating design schematics, site diagrams (including photos), or even physical models in your trial presentation can greatly increase the likelihood that the trier of fact is going to comprehend and retain the message you are trying to convey.
Graphic created by the Nextpoint trial services team
What Data, Documents, and Programs Are at Play?
The first consideration you’ll want to take into account is: What are the data sources and file types that are pertinent to your story? Traditional emails, Word documents, PDF invoices, and 2D diagrams are not difficult to decipher and are fairly easy to display in traditional trial presentation software. But as soon as you bring CAD files, proprietary scheduling programs, and potentially thousands of site maps and photos into the mix, it becomes much more imperative to have a plan for not only how to leverage the contents of the data sources, but literally how it is displayed.
Flexibility is Key
While you can generally conduct direct examinations and opening and closing arguments with linear presentations that flow from one point/slide to another, it is imperative to be nimble for cross examinations in order to react to what the expert/witness has asserted. When working with standard data types (emails, Word documents, PDF invoices, etc.) you can accomplish this using PowerPoint or a trial presentation platform such as OnCue, TrialDirector, or Nextpoint’s Theater view (“Ms. O’Leary, will you please bring up Exhibit 12, the January 2024 construction invoices, and call out the total value”). But this becomes a much more complicated consideration when dealing with some of the aforementioned proprietary platforms that may have a lot of nested information (site views, CAD layers, scheduling scenarios).
To maintain flexibility when presenting data from complex construction platforms, you may want to have some predefined “modules” that are baked out with screen captures (potentially even including interactive “choose your own path” hyperlinks in PowerPoint that lead from one section to another to follow the direction of the flow). This will eliminate the time that might otherwise be required to dig deep into some of the key elements of the complicated software platforms.
Flexibility also comes into play with text/labels. Many times, expert service providers will create very complex and detailed scenarios, demonstratives, and animations that include text/labeling that is ruled inadmissible at the 11th hour, and there may not be enough time to edit and re-render.
When possible, designing demonstratives with an eye toward revisions (including last minute revisions) is key – especially the ability to turn on/off labels, change text, and adjust the order of presentation.
Your Guide to Smarter, Smoother Trial Prep
To help legal teams build a compelling case while juggling depositions, exhibits, witness prep, and more, we put together a practical eguide covering every stage of the process: from discovery strategy to courtroom presentation. It even includes a final checklist to ensure nothing slips through the cracks.
Educate Before You Advocate!
We are in the era of empowerment. While the onus has always been on judges and arbitrators to understand the facts and develop sound legal opinions based on the letter of law, jurors are increasingly interested in “getting it right” and making sure they truly understand the complexities of the case before blindly siding with whomever speaks the loudest.
By breaking down the technical subject matter into digestible segments, your team becomes the educator and counselor leading them through complexities, enabling them to be much more comfortable forming opinions (ideally, in your favor).
Graphic created by the Nextpoint trial services team
Speak to Your Audience!
How you would present a case to a 30-year seasoned judge/arbitrator will be very different to how one might present to a jury. However, you still need to take their backgrounds and inherent confirmation biases into consideration when crafting your story. While judges should be very familiar with the law, it isn’t always a forgone conclusion that they are familiar with construction law, specifically some of the intricacies of the parties’ relationships (owner, contractor, subcontractor, builder, manufacturer, etc.) as well as some of the technical aspects of design delays, flaws, etc. It is imperative that the basic components of the matter (facts, people, and issues) are always well defined so the underlying message doesn’t get lost in the shuffle.
Also, jury demographics are rapidly skewing toward a more technically savvy profile that expects to be entertained. The “TikTok” generation that is used to quick, pithy images and statements isn’t going to be as engaged with text-heavy narratives that require too much deciphering on their side. Instead, keep things short and to the point, ideally with an accompanying visual that complements the underlying message.
When in Doubt, Bring in the Experts
In the end, you know the law and the aspects of the case you need to prove – that’s a lot to have on your plate. When it comes to the presentation, it is often more effective (both in time and efficacy) to bring in the experts who can help create your demonstratives, manage your exhibits, and focus on the show, while you focus on the law.
Ready to Streamline your Next Construction Case?
From building timelines and managing video depositions to leveraging demonstratives and evidence dashboards, the right trial prep software can streamline your workflow and elevate your case strategy.
Additional Resources:
- Tools for Trial Prep Blog: 7 Essential Tools to Build and Deliver a Winning Case
- Case Management Checklist: A Step-by-Step Plan for Comprehensive Litigation Success
- Deposition Prep Kit: Attorney’s Guide to Preparing for Depositions
