If a picture is worth a thousand words, how large a return on an investment can be expected from a multimedia presentation? According to trial lawyer/litigation consultant James O’C. Gentry (Gentry & Associates, LLC), the return can be quite large. In his March 16, 2021 webinar, New Ways for Mediation: A Visual Approach, Jim demonstrated how a visual presentation can enhance the settlement value of a tort case by communicating complexity and touching emotions in ways that words alone cannot. His program focused on the use of such presentations during mediation to provide a compelling, fact-based narrative that can be readily adapted for use at trial if the case does not settle. This informative and entertaining program, the newest addition to the MSBA’s catalog of online programming, is now available on-demand.
Jim was the first to bring computer graphics to a Maryland courtroom while working as an assistant state’s attorney prosecuting homicides in the 1990’s. He later took his expertise to Bekman, Marder & Adkins, LLC, where he created more than 100 presentations for medical malpractice and catastrophic injury cases. While effective when used at trial, they can also be used to educate a mediator, defense counsel, and the insurance adjuster during mediation, often making a trial unnecessary.
Jim first pointed out that the adversarial approach that lawyers often take in mediation— inundating the mediator with lengthy confidential mediation statements full of argument, exhibits, medical records, and transcripts—can be counterproductive. The mediator often does not read everything and has to make his or her own determination as to what portions of the large stack of documents and looseleaf binders might actually be important. As the other side never sees the mediation statement, an opportunity to educate both mediator and adversary is lost.
A better approach, he suggests, is to elevate fact over argument, telling the client’s story in a non-adversarial manner with visuals that their audience can process much more quickly than they can the written word. Rather than trying to guide the mediator through reams of documents, it can be more effective to create a multimedia presentation with timelines, charts, animations, medical illustrations, interviews, callouts of parts of the record that deserve special emphasis, and synchronized deposition clips that highlight critical facts, all to tell the story in a way that cannot be done with words alone.
To illustrate his point, Jim showed several four- to five-minute excerpts of his videos, which typically run 20 minutes in length. A “day-in-the-life” video, for example, can show the mediator and ultimately the jury what the client’s life was like before the injury and what it looks like afterwards, and do so in a far more compelling way than witness testimony can. These videos can also be used in combination with deposition clips that juxtapose conflicts in the testimony of the adversary’s witnesses, footage of the aftermath of a horrific accident, and summaries of expert reports, with or without informative medical illustrations. Similarly, animations can be used to show the mechanics of “invisible” injuries like whiplash or traumatic brain injury that cannot be seen in an x-ray or other image, but nonetheless cause significant pain and suffering.
Jim believes that such presentations are limited only by the lawyer’s imagination and that the storyline of virtually any complicated case can be conveyed in a multimedia presentation. While these techniques are most commonly deployed in catastrophic injury cases, Jim has also used them with effect to illustrate Ponzi schemes, in patent cases and other complex litigation.
Jim’s presentation was punctuated with video illustrations of every point he made during the talk as if to prove his premise (“any case that’s complicated can be visualized, and anything that can be visualized can be shown”), and its corollary (“if you can’t illustrate it, you don’t understand it”). The well-paced webinar contains excerpts of several different types of litigation videos that have been used in actual cases, supplemented with clips pulled from Hollywood movies, YouTube, and other sources to demonstrate the full range of options available for case presentation.
While Jim’s remarks were aimed primarily at cases large enough to support a high-tech approach to mediation, Jim also offered tips for low barrier technological solutions for smaller cases. He observed, for example, that lawyers have traditionally incorporated by reference images, maps, and charts in mediation statements (e.g., “See Exhibit 4”), which interrupt the reader’s train of thought as they leave the page to flip through attachments and binders to find the exhibit. Often, however, the pertinent section of the exhibit can be incorporated directly into the primary document, reproduced on the same page as the text that refers to it, making the point instantly and without interruption.
Jim also believes that as the use of technology continues to grow, it is still an acquired skill that requires practice to perfect. He offered a word of caution: technology can be counterproductive if used incorrectly. Jim used PowerPoint as an example, noting that the excessive use of bullet points that cram too many words into too small a space can cause the lawyer to just read the slide or the audience to read ahead rather than listen to what the lawyer has to say. Excessive use of fly-ins and other tools that tend to distract rather than inform the can also dull the impact of the presentation.
After taking questions from those who watched the presentation in real-time, Jim offered his three keys to success when taking a visual approach to mediation: (1) preparation (be sure to know and understand the concepts before making the presentation); (2) visualization (use imagination to visualize how best to illustrate the point); and (3) simplification (or, as he explained with a clip of Dan Akroyd’s Joe Friday from Dragnet, “Just the facts, Ma’am”). To register to view the program, which qualifies for 1.5 hours of continuing education credits, on-demand click here.