IN A VIRTUAL WORLD, DEMONSTRATIVES ARE MORE IMPORTANT THAN EVER

Written by Dubin Research and Consulting | Feb 24, 2021 2:36:00 PM

February 24, 2021

COVID-19 has caused most lawyers to work remotely. That means legal practitioners are spending an unprecedented amount of time in front of computer screens. Since the start of the pandemic, more than 13 hours per day on average are spent in front of a digital device, with 55% of Americans spending more time in front of a computer screen during the pandemic than they previously did.[1] For attorneys and legal professionals, virtual court proceedings on video conferencing platforms like Zoom have become the norm.

The U.S. legal system’s embrace of technology is evident from a recent milestone hit by state courts in Texas, which recently announced they had surpassed 1 million hearings conducted via Zoom since the beginning of the COVID-19 pandemic. Since March of 2020, more than 2,000 state court judges have spent upwards of 2.4 million hours on virtual hearings and proceedings.[2] Additionally, Texas held 25 virtual jury trials and 50 grand jury proceedings. In New York, courts held 450,000 case conferences and ruled on more than 60,000 motions in virtual proceedings during the first eight and a half months of the pandemic.[3] While remote technology has allowed the court system to move forward during the pandemic, conducting virtual proceedings comes with a unique set of challenges.

One of the biggest phenomena to emerge of late is “Zoom fatigue,” which is the exhaustion and burnout experienced by users of virtual communication platforms.[4] While the social and mental stressors of the pandemic are contributing factors, psychologists, researchers, and businesses have recently examined what contributes to Zoom fatigue. A popular theory is that it is easier to lose focus during video conferences because we are distracted by other stimuli such as an incoming email, a message on Teams, Slack, or a text.[5]

With no definitive end to the restrictions on in-person court proceedings, attorneys can expect to continue working remotely for at least the next several months. Virtual proceedings could also be here to stay given some of the efficiencies they create.[6] Engaging your audience over Zoom should be one of the top priorities for anyone participating in online hearings and trials. Now more than ever, one of the most effective ways to command attention is through the use of demonstrative aids – as they help to anchor your audience’s attention on the primary message(s) of your presentation. A distinct benefit of virtual technology is how easy it is to incorporate demonstratives into your argument. While many physical courtrooms are not readily equipped with the necessary hardware to accommodate a digital presentation, virtual proceedings allow counsel to quickly and seamlessly present a demonstrative to emphasize an important message.
During the pandemic, DRC’s information design team has been working with clients to help them incorporate persuasive demonstrative aids into their virtual presentations. Below are four examples used during virtual proceedings that resulted in favorable outcomes for our clients.

Example 1 – Infographic
The infographic below is from a recent Zoom hearing. The issue was whether opposing counsel could withdraw on the eve of an important pretrial hearing. The demonstrative illustrates all of the effort expended by attorneys leading up to the hearing and how difficult it would be for new counsel to get up to speed. DRC’s design team created the below infographic to summarize the enormous investment of time that new counsel would have to undertake to prepare for the hearing. In ordering that opposing counsel would have to conduct the hearing prior to withdrawing, the judge specifically referenced the infographic as persuading her to rule in our client’s favor:

Example 2 – Timeline

DRC created the timeline below for use at a recent virtual hearing. The timeline’s objective was to show opposing counsels’ actions in the days immediately following a pivotal deposition in the case that revealed the opposing party had engaged in needless delay and potential misconduct. This timeline provided persuasive temporal context and illustrated how events unfolded after alleged witness intimidation and obstruction of justice came to light:

Example 3 – Demonstrative Graph

DRC created the graphic below for a virtual bench trial held in the S.D.N.Y. in mid-2020, which resulted in a major victory for DRC’s client. The graphic shows that the percentage of prime RMBS listed in a fund’s portfolio decreased over time and that the target portfolio the plaintiff alleged contained a misrepresentation was an obvious outlier that was adjusted prior to the closing date. The demonstrative also highlighted how the plaintiff had reviewed and approved of the fund’s investments post-closing. In issuing its verdict, the court noted that the asset targets were point-in-time expectations for the fund’s investments based on market conditions and that the plaintiffs’ approval of the transaction was a “powerful clue” that the plaintiff did not actually rely on the outlier target portfolio:

Example 4 – Comparison Chart

DRC created the below demonstrative for a virtual hearing on the admissibility of DNA evidence. DRC’s client argued that the DNA evidence was inadmissible because multiple inconsistencies between the electropherogram data and the analyst’s lab notes made the DNA results unreliable. The below demonstrative summarized for the court a comparison between the electropherogram data and the lab notes to show the irreconcilable data. The court ultimately excluded the DNA evidence:

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