Visual presentations are now commonplace for trial. Judges and jurors have come to expect that trial lawyers will use visuals during a trial. Likewise, visual presentations are becoming ubiquitous in alternative dispute resolution venues. Moreover, it is rare that cases go to trial these days because more cases are being resolved by mediation. For instance, in King County (Seattle, Washington), the King County Clerk reported that less than three percent of the cases are resolved by trial.
Just as the goal at trial is to win, the goal of the parties in a mediation are to achieve a disposition of the case that is favorable to the clients, a high amount for the plaintiff and a low amount for the defense. Counsel in a mediation should take advantage of all the tools that a trial lawyer would use in trial to persuade, and that naturally includes visual presentations. Indeed, counsel in a mediation has more leeway than a trial lawyer does because the rules of evidence are inapplicable.
Today’s visual presentations are well suited for mediations because they are digital and can be available to the mediator and the participants to watch when they want and where they want. They need not just be viewed on the day set for the mediation. Further, the presentation can be stored on software, such as TrialPad or Sanction, which enables the lawyer to retrieve and display visuals whenever the lawyer wants them.
In Visual Litigation: Visual Communication Strategies and Today’s Technology, the types of visual presentations that may be created for use in mediation are covered in depth with case illustration. Here are some of the visuals that we discuss in the book and that a lawyer may use for a mediation. First, the day-in-the-life video is a staple for personal injury trials. Since the rules of evidence don’t apply, the video can be augmented with such things as interviews with family members. Second, an animation of the product defect that led to the plaintiff’s injuries or death can be compelling. Third, a PowerPoint presentation can be developed to cover significant evidence. Forth, the evidence in the case can be presented visually again using TrialPad or Sanction, such as clips from depositions and documents. And, if the case is not settled through mediation, the lawyer will have created visual presentations that in whole or in part can be used in trial.