David M. deRubertis
Telling your employment story with thematic visual images David M. deRubertis
Good visuals for employment cases require creativity. Watch how the story unfolds as an employment case is tried with words and pictures
Good trial lawyers know the impor-
tance of teaching the jury about the case – not just with words, but with images. Visual story telling is far more effective than story telling with words only. Carefully-selected visuals can reinforce key case themes, driving those themes home to the jury so that it will able to conceptualize the case within the frame- work of the theme and then easily remember and articulate the key points in deliberations. Indeed, we’ve all heard the cliché that “a picture is worth a thousand words.” Thus, one key to effectively trying cases is distilling the massive amounts of case data into simple visuals that reinforce your key themes. In some cases, the case story inher-
ently lends itself to a visual presentation. For example, in many personal-injury cases there is a scene where the incident occurred that can either be illustrated with actual photographs or recreated through computer animation. Likewise, the effects of a catastrophic personal injury can be visually illustrated to the jury through a collection of before and after photographs or a “day-in-the-life” video that captures the daily impact of the serious injuries on the life of the plaintiff and his or her family. But employment cases do not always
easily lend themselves to this type visual illustration. There is often no “scene of the incident” and the injuries are usually emotional, not physical. The key case facts are typically not a single event that can be illustrated visually. Instead, the case story is usually built upon a detailed series of events that played-out over an extended period of time. Where the events happened is often less important than why they happened. But the fact that employment cases do not always fit as nat-
32— The Advocate Magazine APRIL 2011
urally into visual story telling methods does not mean that the employment trial lawyer should resort to trying the case with words-only instead of images and visuals. Instead, just like with any other trial, one key to a persuasive and mean- ingful presentation is integrating effective visuals into your trial presentation. One inherent difficulty in creating
useful visuals for the employment trial is that these cases usually involve many intri- cate detailed facts, lots of players and a chronology of events that is critical. Thus, the demonstrative evidence usually con- sists of things like chronological timelines and cast of characters or organizational charts. These demonstratives are impor- tant. A well-done timeline definitely helps the jury walk through the case in opening and reorient themselves to where events fall on the chronology during witness examinations. Indeed, in most cases, a timeline is mandatory. But just using a timeline and a chart of key players isn’t enough. While a well-done timeline and key players’ chart will help the jury process the story’s data, neither really advances your themes or gives jurors an easy way to retain or recall key facts or concepts. Thus, employment trial lawyers need to look beyond timelines, chronolo- gies or players’ charts to tell the story of their case visually. This article tries to illustrate the inte-
gration of creative and simple visuals other than a timeline or players chart into the trial of an employment case through an example of a trial recently conducted by the author. The article will describe briefly the basic case facts, discuss certain issues in the case and then show with actual slides or demonstratives used in the trial how simple images or graphics were used to help overcome obstacles and to
drive home key themes. A timeline was used in the case; but the timeline was just one of many visuals available to the jury as they learned the case and decided who was right and who was wrong and which side was worthy of their vote.
The basic case facts The plaintiff, who worked as a speci-
men processor in a medical laboratory of a large company, suffered from life-long chronic mental illness (major depres- sion). The company had recently under- gone a series of mergers or consolida- tions. As a result, the plaintiff had moved from a smallish work place with about 50 or so other employees to a factory-like work place with 300 to 400 other speci- men processors packed into an imperson- al work space. The plaintiff felt like man- agement was always looking over her shoulder and scrutinizing her every move, even though everybody admitted she was a good worker who had strong technical processing skills. Eventually, she began to really dislike the work environment and feel like the constant pressure of manage- ment was too much. One night at work, she was approached by a lead person who admonished the plaintiff for not properly placing the sticker label onto a specimen. In response, the plaintiff admittedly lost it and shouted a series of expletives. A few days later she was called into her supervi- sor’s office where she was talked to and counseled about this incident. The day after she was called into her
manager’s office to discuss the incident, her depression spiraled downward. In fact, she became suicidal. Instead of reporting to work that evening (the plain- tiff worked the graveyard shift), she checked herself into a psychiatric ward.
See Story, Page 34
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