Multi-Media Presentations in Mediation
By Gerald A. Klein, P.C.
More and more cases are being won and lost at mediation. As the cost of going to trial and the risk of losing seem to increase every year, both plaintiffs and defendants are seeking to mediate cases earlier to resolve them, if possible, while reducing legal expenses and entirely eliminating a potential disastrous trial verdict. The better lawyers are now rethinking how they approach mediation and often view mediation as the actual trial. The purpose of this article is to help lawyers add a new weapon to their mediation arsenal: the multi-media presentation.
The Reluctance of Old Dogs to Learn New Tricks
If we raise Abraham Lincoln from the dead – beside the fact that he would not look very good – he could probably try a case the next day. For the most part, lawyers have not changed the ways they have presented cases in over a century. Many lawyers still believe – or at least say they believe – that juries are more impressed with a lawyer drawing diagrams on a board than seeing a “flashy” presentation. It is time for these lawyers to look at their calendars and move into the 21st Century.
We live in a society where most people get their information from television and computer screens. The majority of our citizens are functionally illiterate. They can read the words on a bus schedule, but struggle to determine when the next bus will arrive. They can read the words on their pay check but would have no clue as to how to determine what they had earned year to date. Lawyers must deal with this fact of life.
The entertainment industry – which makes its money by keeping people’s eyeballs glued to the screen – recognizes the ordinary person has a short attention span. Television shows almost never last more than an hour. Film producers require virtually every movie to be two hours or less. Yet, many lawyers believe jurors will sit riveted to their chairs keenly interested in six hours of testimony or two hours of an attorney lecture during final argument.
Until lawyers recognize that people are making decisions from selecting toothpaste to voting for President based upon sound bites, they will find they are delivering messages to people who are “not home”. The concept behind a multi-media presentation is to engage an audience by presenting the spoken word, video evidence, photographs, animation, and physical evidence in such a compelling way that people with short attention spans can focus on the message and understand it.
The Concept of a Multi-Media Trial Presentation
Most lawyers believe that multi-media presentations begin and end with slick charts and time lines. However, while such charts are very effective in conveying a message, they can only hold the audience’s attention for so long. An effective multi-media presentation will include photographs, videotape of accident sites, video depositions, and even animation interwoven into the presentation of evidence or arguments.
The Advantages of a Multi-Media Presentation at a Mediation
Surprisingly, probably half of all attorneys, or more, go into mediation without any kind of settlement plan. Other than having a vague idea about the amount of money their client would be willing to pay or accept to settle a case, most attorneys do not have any “battle plan” for the mediation itself. As a result, most mediations proceed with an old-fashioned offer and counter offer until a magic number has been reached. Such a strategy does not result in the most advantageous settlement and can lead to a frustrating breakdown of settlement discussions.
Multi-media presentations at mediations help motivate decision makers (not just lawyers) to settle a case. When a presentation is made to the other side at a mediation, an adversary gets a preview of the evidence that will be shown to a jury if the case proceeds to trial. If done effectively, such presentations will motivate defendants to reach more deeply into their pocketbooks to resolve a matter and plaintiffs to take less than a case is worth.
A multi-media presentation at mediation has numerous advantages over the traditional mediation approach. First, an attorney presenting the multi-media presentation puts the other side on notice that the attorney is extremely well prepared and the case will only get better if the mediation is unsuccessful. Second, it is one thing for the opposing side to have a vague feeling of “risk” if the case is not settled. It is quite another matter for opposing counsel and the party himself (or principal) to watch the case unfold on videotape. A “no holds barred, in your face” presentation – if done properly – can make an adversary aware of the risk of going to trial without offending the adversary.
Building a Multi-Media Presentation for Mediation
Recognizing that most cases are going to settle at mediation, there is little incentive to save anything for trial. This is the time to bring to bear all the big guns. Unfortunately, a multi-media presentation at mediation takes a great deal of time and money to prepare. The good news is the time and money is generally well spent if the case settles, and if the case does not settle, the time and money spent will not be wasted because virtually everything can be used at trial.
The following are suggestions as to how to create multi-media presentations:
1. Use of Videotaped Testimony
It is hard to conceive of a case where a party will not take the depositions of an adverse party by videotape. Contrary to popular belief, videotaped depositions may be presented at trial even if the party is available as a witness. Assuming a lawyer has a good case, the video deposition of the adverse party should have a few “Kodak moments” during which a party makes devastating admissions. These admissions can be played at the mediation as part of a multi-media presentation. There is nothing more unsettling to an adverse party than to watch herself on the screen fumbling all over the place in response to a given question or making a devastating admission, put in context by the opposing attorney. Such testimony can be called up instantaneously using a bar code wand which is incorporated in most trial presentation software packages. If you do not have such a package, hire a company that does to help you make the multi-media trial presentation.
2. Use of Charts
Charts have an important role in a multi-media presentation. A timeline may lay out an entire case showing exactly how a decision was made at a company or the improbability of an adversary’s claimed defense. While sophisticated charts can often cost thousands of dollars, inexpensive “blow up” charts can be made for less than $100. Such charts can be as simple as a “Letterman’s top 10 list” indicating the 10 reasons why the presenting party will win a given case. Moreover, the charts can be used as a structure for the presentation with intermittent references to a videotaped deposition excerpt or a critical document.
3. Highlighted Documents
Using trial presentation software, it is possible to show on screen critical documents appropriately highlighted. These documents can be manipulated on the screen or presented with a bar code reader for instantaneous presentation. Like the video clips, such documents should be used in conjunction with argument charts.
Animations are “living charts” which can bring the theory of a case to life. The cost of creating animations has dropped dramatically during the last five years. However, most lawyers only use animations for accident reconstructions or to show how a product failed to function. Most attorneys ignore the potential of using animations solely for the purpose of argument. For example, in cases where a party has raised a shell game of legal theories or defenses, an animation can show an actual shell game with each defense changing as the shells are covered, shuffled, and then uncovered. One interesting shell game in a bad faith case was to show under the shell (at the start of the game) “coverage” and then, as the shells are moved, to lift up the same shell to find “no coverage”. The inference created is that by using a shell game, an insurance company presents the likelihood of coverage when the policy is purchased, but the reality of “no coverage” when a claim is made.
5. Video Settlement Brochures
One of the most impressive uses of multi-media presentations in a mediation is to create a video settlement brochure. These settlement brochures consist entirely of a videotape presentation, although they can be interwoven with a party’s oral presentation. While the most common settlement brochures involve “day in the life” videos, video brochures are limited only by an attorney’s imagination. For example, a wrongful death case could include videos showing family photographs, films, the accident site, etc., all set to appropriate mood music. While such videos (other than “day in the life”) are not admissible at trial, they can effectively communicate what the other side will see at trial, including the mood that will be conveyed.
In general, video settlement brochures should be 1/2 hour or less and the attorney should be actively involved as writer and director, although a qualified video company should do the actual production. The critical advantage of a video brochure is that all the work is done before the mediation and it is a relatively fool proof method of creating a multi-media presentation.
With the growth of trial presentation software, the cost of creating a multi-media presentation has dropped dramatically. In fact, an attorney who is competent in using trial presentation software would only incur the cost of synchronizing video and scanning documents and photographs into the program. These costs will typically run less than $2,000. The cost of a video settlement brochure may run in the range of $2,500 to $5,000. Moreover, it is possible to reduce those costs dramatically if an attorney is competent at editing videotape with some of the new software programs now available.
The Dangers of a Multi-media Presentation
Some attorneys are justifiably concerned that a multi-media presentation will have the effect of alienating the opposing party. While an obnoxious or over-the-top presentation might cause more harm than good, for the most part this concern is not well founded. People who appear at a mediation are already adversaries. The purpose of a professionally done but low key multi-media presentation is to put an adverse party on notice of the comparative strengths and weaknesses of a given case and to justify a demand or settlement offer. While a multi-media trial presentation should not be designed to antagonize an opposing party, it is important that both parties share a common sense of reality. Without a shared sense of reality, the parties will not reach a settlement.
Even the most prominent and experienced trial attorneys are finding they are increasingly resolving their cases at mediation rather than at trial. Accordingly, the mediation has become the trial for all practical purposes. Lawyers who wish to maximize their positions at trial are increasingly recognizing the advantages of a multi-media presentation. Such presentations convey to opponents an attorney is ready to try her case and the case is stronger than the other side initially thought. Lawyers are not using multi-media presentations just to impress the mediator but to intimidate opposing counsel and the parties who must ultimately agree to a settlement. If a case is worth the expense of mediation, then it is worth the cost of incorporating at least some multi-media techniques.
This article first appeared in Advocate, January 2006.