Chapter 1

• Jurisdiction: United States

Chapter 1 Introduction to Book and Online Supplement

"Be sure of it; give me the ocular proof."

William Shakespeare (1564-1616), Othello, act 3 scene 3

A. Visual Litigation—Ocular Proof

We live in a visual culture. Since the dawn of humanity, we have been making judgments with our eyes. The earliest incarnations of humans made simply visual decisions about the safety and security of their surroundings. Logic, rationality, and all of our other thoughts processes evolved long after our sense of visual judgment. From this evolutionary standpoint, our eyes have always been the predominant force in our decision-making. While we have evolved from our caveman days, research has consistently shown the influence of visual communication. Consider a study on information recall, which showed that people remember only 10 percent of what they hear three days after hearing it, compared to remembering 50 percent of what they saw and heard three days after seeing it.¹ Technology, social media, and the emergence of the millennials and Gen Zers have only compounded this reality.

This has important implications for trial attorneys. Successful litigators rely on visuals to persuade during both pretrial and trial. Today's jurors receive information over the television and the Internet. The millennial generation that makes up over 40 percent of the jury pool nationally grew up with information being delivered to them visually through pictures and videos on their phones, tablets, and laptops. Members of the Z Generation, who have begun to enter jury pools across the country, have been raised on visuals at least equally if not more than millennials. Consequently, jurors are not only visual learners but also are receptive to information being delivered to them visually, and they expect that trial lawyers will communicate information to them visually with the aid of modern technology. To be a successful litigator you need to know: how to communicate visually; how to create visuals; what software and hardware can produce the desired results; and what visuals are persuasive. In fact, research has shown that visual communication increases retention, comprehension, and overall persuasiveness.

A Cornell Law Review article entitled "What Jurors Really Think" describes the importance of technology in today's trial work based upon a study of 500 jurors in federal district court trials in Chicago, Illinois, from 2011 to 2017:

Just as technology has become a mainstay in almost every area of modern American life, it has also become a mainstay in the courtroom. Jurors expect attorneys to use technology to aid their trial presentation. This is no surprise, given the ever-increasing prevalence of technology as a learning tool both in classrooms and in the workplace. Many jurors are accustomed to learning through technology, and technologically enhanced presentations present an ideal platform to summarize and connect the dots

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