Visual Aids: Show, Don't Tell

(This is the eighth in a series of posts about preparing for mediation.)

A war story.

Years ago I tried a case in which I represented a lawyer being sued for malpractice. It was complicated because it was a case within a case within a case. The original underlying case was a legal malpractice case against the plaintiff’s divorce lawyer because she was unhappy with the result of the divorce. It involved the breaking up and distribution of assets from subchapter S corporations, etc. In the subsequent underlying case, my client had represented the plaintiff in a legal malpractice case against her divorce lawyers. He had prepared the case up to trial, and then the plaintiff became disenchanted with his services and switched counsel on the eve of trial. Her new counsel tried the case and the plaintiff was unhappy with that result. The case was messy and complex.

Because the two underlying cases had been prepared for trial and/or tried, both cases had tons of documents, depositions, forensic financial reports, etc. The second case had trial transcripts. Then, in the case I tried, there was another layer of discovery and more depositions and expert reports.

While preparing for plaintiff’s expert’s cross-examination, I noticed that he had only billed 20 hours for review of the file. By contrast, our expert had spent more than three times as much time. I decided to show, not tell, the jury what this looked like. I put all the depositions, trial transcripts, documents and expert reports in banker’s boxes and brought them to court.

During cross at trial, I pulled out each deposition, document, etc., and asked the plaintiff’s expert if he had reviewed it in preparing for his testimony. It was one of those questions where I couldn’t lose. If he said yes, it would be clear by the time I got to the end that he was being untruthful, because he had only spent 20 hours and there were mountains of documents. If he said no, the jury would see that he had not reviewed all of the evidence in the case and therefore his opinion would not be trustworthy.

Here’s the best part. After I asked him about each item, I placed it on the floor in front of the witness box, in two piles: reviewed and un-reviewed. This courtroom had a narrow well, so there was not much room between counsel table and witness box. By the time I picked up the third banker’s box to cross examine him about, the judge stood up and leaned over the bench so he could see how large the piles were! (If that doesn’t give you a rush as a trial lawyer, you should seek other employment.) Here’s the jury seeing the judge following my cross-examination so closely that he’s curious enough to stand up to see the size of the piles so he could judge the credibility of the witness.

I could have just asked a summary question about what the plaintiff’s expert had reviewed. Instead, I made my point graphically and the jury got it.
So here’s my question. If more than 98% of all cases do not go to trial, why don’t lawyers spend more time thinking strategically about showing, not telling, at mediation?

For your next mediation, consider using foam boards, power point slides or video graphics for the joint session. Also consider bringing “distributables,” items that you can hand out to the other side and the mediator. Visual aids can illustrate your arguments or enhance your negotiation strategy. Sometimes they can tell a story better than you can.