A friend recently told me about when he was a juror on a civil trial regarding an unpaid invoice. His story made me shake my head. He said that at one point during the trial when the jury was sent back to the jury room, one of the jurors blurts out, "Well, I think he's guilty" referring to the plaintiff. The foreperson's response was that the plaintiff is the one suing and that this isn't the type of case where someone is guilty. The juror's retort was "I don't care" and that he still thinks "the guy is guilty."

The juror's complete misconception mirrors my own observations on three juries. During deliberations on one criminal case, a juror started crying about the defendant being set up. The first and only time anyone mentioned a set up was by defense counsel during closing arguments in an unsubstantiated throw-away comment. During deliberations on another criminal case, one of the jurors exclaimed, "I think he [the defendant] did it!" The foreperson explained that the jury has to decide if there is sufficient proof for each element one at a time. 

Under the law, someone cannot just be "guilty" or have done "it" without consideration of the elements and proof.  But, make no mistake, in the minds of many jurors, there is nothing else.

What does that mean? Simply put, many jurors make decisions based on their gut. Not the lawyer's eloquent and impassioned words. Not the damning exhibit or testimony. Not the razor-sharp cross examination. Not the jury instructions. It is a juror's gut feeling that can significantly influence their decision making.

One sure way to have an impact beyond words is to use visuals / demonstratives. Demonstratives can help the jurors believe what you say by seeing it. Now, don't get me wrong… I'm not saying visuals are more important than the presentation of law and facts in a case. But I am saying that visuals can increase the chance of eliciting a gut reaction. If done right, that gut reaction will be in your client's favor. 

If you don't believe me, let's do a thought experiment. Let's say that you have to make a presentation on New York Harbor's navigability in the 1800s. Picture in your mind what the harbor may have looked like with its ships. Now look at the two paintings of the Harbor from that era. 

Bay and Harbor of New York from Bedlow's Island, 1850–60, attributed to Edmund C. Coates, Courtesy of The Metropolitan Museum of Art

If your goal is to emphasize the ease of navigation, you would want to use the image above. Its soft tones and placid water elicit a feeling of calm and warmth.

Ship in New York Harbor, 1890, American, Courtesy of The Metropolitan Museum of Art

On the other hand, if you wanted to leave your audience feeling the waterway is dangerous, you would select this painting. Its churning waters, high winds and slate-gray color scheme would generate a cold and foreboding feeling. The same scene shown differently elicits opposite visceral reactions.

How does this apply to litigation? We know that images can change how words are interpreted. Litigators should harness the finder of fact's (and other relevant audiences') reactions to visuals with the goal of increasing persuasion in your favor. I'm not saying to exaggerate or mischaracterize your point with demonstratives or even use them at every case and opportunity. But I am saying that you should understand their power.

Even the most unbiased jurors (and judges!) get gut feelings. That is why being able to show them what you mean in addition to speaking to them about the facts and law can help your client and case. Consider all the tools at your disposal—including demonstratives. Doing so can help the jurors to feel that the other side is "guilty" or did "it"…even if it's not technically correct.

That's how they need to feel. Period.

Daniel J. Bender is a litigation graphics consultant with Digital Evidence Group, LLC in Washington, DC and a former litigator.