Using graphics in ADR

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Whether it’s a simple chart or a complex animation, visuals help jurors understand a case. In alternative dispute resolution, visuals can have the same effect, but because the forum is different from a courtroom, they must be used in a different manner.

“Visuals can help build knowledge, reinforce key themes, simplify complex facts and ultimately create continuity through all phases of arbitration,” said Laura Dunbar, a design director for TrialGraphix/Kroll Ontrack, a legal visual services firm in Miami, Fla. “And while you want to use graphics like you would at trial, it’s important not to go overboard.”

Here are some suggestions for properly using visuals in the ADR process:

Approach mediation and arbitration differently.

Because mediation is conducted without a finder of fact — and is often handled more casually and in a shorter time frame — attorneys are advised to scale down the visuals and to simply present their case.

Stick to charts, said Dunbar, and if you have something a bit more complex, put it on a laptop or other mobile device to present it.

Because arbitration is likely spread out over a couple of weeks and often takes place before a larger group of panelists, attorneys have the option to be a bit more elaborate.
If you want to portray the extent of the injuries suffered by a plaintiff in a personal injury lawsuit, for example, a complex graphic of the human body highlighting each area where the victim was affected can be very useful.

“You want to come to arbitration looking like you are all set for trial,” said Dunbar.

Know your audience.

The audiences in ADR vary greatly, with some panelists being more receptive to visuals than others.

Older arbiters may be less receptive to complex graphics and be satisfied with a chart.

But lawyers shouldn’t be overly concerned if they happen to have a more elaborate presentation than the other side.

“Don’t be afraid of the David versus Goliath perception,” said Dunbar. “It’s not like a jury who will view you as a large corporation going against an individual. Many panelists are retired judges who are used to being presented to this way.”

Beware of graphic distortion.

Remember what the graphics are being used for: as a framework for the facts of your case.

Using graphics as a crutch can cause problems and may even be misleading.

According to Dunbar, graphic distortion is a common misstep for lawyers using visuals to present their case. It’s even worse if a panelist suspects deliberate distortion.

“Deliberate distortion is an attempt to hide some feature of the data,” said Dunbar. This practice commonly includes the inaccurate use of scale, such as a timeline that makes one five-year period look shorter or longer than another.

Dunbar warned that panelists and opposing counsel are often quick enough to notice this and will start to poke holes in your case.

Disclose all visuals beforehand.

Just like at a trial, attorneys in ADR are not allowed to surprise the other side, and are obligated to disclose exactly what technologies will be used and what they will show.

Dunbar suggests that lawyers on both sides meet beforehand and share each visual they plan to bring to the proceeding, just as they would witnesses and evidence in a trial.

“The very last thing you want to do,” said Dunbar, “is spend time and money putting together this graphic presentation only to come to the arbitration and have it be objected to.”