“The medium is the message.”
March 11th, 2008 Posted in Videotaping Depositions‘The medium is the message.’ This rule of persuasive communication was first stated by Marshall McLuhan in Understanding Media: the Extensions of Man, published in 1964. The rule has been restated time and again in university text books since then, but only recently have litigators begun to acknowledge its truth.
Most trial lawyers will lose a case (some will lose many) simply because they lack a complete understanding of how the modern juror processes information. Today’s juror lives in a digital world. They reported for jury duty online, get directions to the courthouse on vehicle navigation systems, and receive a cell phone admonition at the beginning of Voi Dire. In the modern digital world, why is it that attorneys primarily present arguments verbally and evidence physically? The jurors courtroom experience seems like a terrible museum visit.
Production value matters. With all the resources available, there is no excuse for lackluster trial presentation. University studies have shown that retention rates triple when auditory stimulus is accompanied by visual aids. Simply stated, jurors will remember about 10% of all the information you tell them, but when you show and tell jurors the same information, retention and comprehension jumps to 65%. With he average juror, the facts of a case are actually less important than the manner in which those facts are presented.
It is common trial practice for attorneys to read from deposition transcripts when a witness is unable or unwilling to attend. Unfortunately, jurors will day dream and dose through this tedious reading even when they role-play with co-counsel sitting in the witness box. The only effective way to convey deposition testimony is to play a video, preferably with scrolling text so the jury can read along. It’s the difference between listening to lecture and watching a close captioned movie.
The key to success in any litigation is capturing the attention of the jury. The veracity of counsels’ argument, the credibility of a key witness, the preponderance of physical evidence mean little to jurors when presented improperly. Conversely, video can visually transport the jury while remaining in the courtroom. It’ provides the power to illustrate visual evidence ranging from human emotion to property damage that words cannot completely convey.
In the digital age, simply stating the facts of a case to a jury, even a hand picked jury, is not enough to ensure a favorable judgment. The mind of the modern juror is not captured by arguments alone; it takes the power of multimedia. Studies show 85% of human knowledge is absorbed visually. No matter the facts, no matter the strength of you case, success always boils down to the impact on jurors.
