In the first part of this special guest episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small interviews Scott Duval, managing director at FTI Consulting, to discuss the vital role of trial graphics and multimedia in persuading juries and other fact-finders. Mr. Duval shares his journey from journalism and design to supporting trial teams with visuals for more than 25 years, highlighting how technology has transformed courtroom presentations from simple boards to dynamic animations and interactive exhibits. Together with Mr. Small, he explores how well-crafted graphics help clarify complex information, influence deliberations and create memorable narratives, including real examples from arbitration and high-profile litigation. The conversation reveals the power of visuals to engage multiple senses and underscores the evolving expectations for legal presentations in courts and arbitrations worldwide.
Podcast Transcript
Dan Small: Welcome to The Trial Lawyer's Handbook podcast. We are delighted to welcome to the podcast Scott Duval. Scott's the managing director at FTI Consulting and has been supporting trial teams with multimedia and graphics and the full range of support for 25 years. Scott and I worked together, and he's great and has a lot of good wisdom. Scott, thanks so much for joining us on the podcast.
Scott Duval: My pleasure. I hope I can live up to that introduction.
Dan Small: I wanted to talk about with you how important the graphics are to communication. I mean, only lawyers would think about trying to persuade someone by just talking to them. And that's because we went through three years of torture at law school where they think that that's the way to teach people, I guess. But you can't really teach and persuade only using one... sense. People need to see it and feel it and appreciate it. I'll just tell one quick thing. Judge Sayler, the federal judge — and he and I have written a great deal about trial practice — and he tells the story of going back into the jury deliberation room on more than one occasion after a trial and seeing that the jury has taken the big easel pads and put papers all around the deliberation room and done their own chronologies and their own cast of characters. And Judge Saylor's point is, as a trial lawyer, do you really want to leave that to the jury? Isn't that something that you ought to be in charge of? And I know that you do an amazing job of these kinds of graphics. I wanted to start, though, with history. You were a journalism major, as I understand it. How did you get into this amazing process of doing trial graphics?
Scott Duval: Well, I actually started as a design major many years ago in the art college, actually, I guess. I've forgotten what the appropriate term was, but at the University of Florida. And I decided that I wanted to maybe earn a living when I got out. And so I shifted to journalism. It was at a point where it was really the infancy of things like USA Today and color images in a newspaper, believe it or not, that was, you know, kind of earth-shattering kind of technology at that point. I got out of school with a journalism degree with an emphasis on graphics, and a couple years of work in production in a graphic sense. One of my former friends had started a company, and I joined the company when they were eight people. And I kind of continued on that path of expressing ideas visually. And so I learned a lot. And that was in the early, I guess, '90s. And so at that point, things were printed quite often, not technology. And so it translated pretty well. And that's how I got my start.
Dan Small: I started as a trial lawyer, as a federal prosecutor, well before that, and I can remember when graphics were going down to the photo shop and getting a picture blown up. That was about as sophisticated as we could get. And now it's just so remarkably different and more creative and more expressive. I think a lot of people think about graphics and demonstratives just for jury trials, but your experience is much broader than that. Tell us about it.
Scott Duval: So that's something from the past. It was absolutely the case that many of the cases in front of a jury were boards, as I mentioned. And started that way, but with time, a lot of other media became available to the trial attorney, whether it's a collection of documents or video or what have you. So the entire presentation capability of anyone standing in a litigation expanded and expanded quickly. And so now you fast forward, and I think the expectation is of all triers of fact, if I call them correctly, is that they will be presented too. And so as recently as last week in international arbitration in California, I witnessed a firm from Asia presenting, even actually using boards, but using presentation through PowerPoint and really embracing presentation technology for an arbitration setting in front of three arbitrators, which may not sound that surprising, but I can say probably five years ago, a lot of them would still use paper and direct the panel to a binder. And I'm sure you've seen it, Dan, where you have 30 binders, three arbitrator tables set up behind them, and they have to turn around and grab the binders. So it's kind of a nice transition, and I think the arbitrators have embraced this and want to keep up with the technology. So I see animations in that venue, and so it's really changed quite a bit from just being juries.
Dan Small: And you raised the issue of technology, which I think is critical here. What have you seen? How has technology changed and helped the process of teaching and persuading the finder of fact?
Scott Duval: When the finder of fact wants something, the answers happen a lot quicker. If someone said, gee, I would, you mentioned the deliberation room where the jury's in the back room pasting together an organizational chart or what have you. When attorneys get those ideas during a trial or an arbitration hearing, the ability to create that sort of a graphic or answer of whatever sort, it happens so quickly. And so I think that the technology has just made everything kind of at hyper speed occur, even in courtrooms. And so it's just changed the speed at which things happen, and the answers that are provided come much, much quicker. Does that answer your question?
Dan Small: Yeah, no, I think that's absolutely right. And I think a lot of lawyers still today underestimate the impact of those kinds of visuals. I just, one quick funny story, many years ago as a prosecutor, I tried a money laundering case and we were able to take the money and then it got split up between a whole bunch of checks and then got reassembled back together. So I had this huge board of a drawing of tracking the money, and it really looked like a spider's web. So I was able to stand up in front of it at opening and use that great old quote from Sir Walter Scott, "Oh what a tangled web we weave when first we practice to deceive," and kept referring to the web throughout the trial. I had it behind me in the opening. Defense counsel, who's a very good lawyer, gets up for her opening, and somehow she missed the fact that my graphic was still there. And so all through her opening — which was very good — the jury is looking at my tangled web. And so I think [the ability to] demonstrate has really heightened the importance of reading the room and being aware of where you are and what's going on. Have you, have you found that as well?
Scott Duval: Absolutely. And the funny thing is, is as you tell me this story of your board, let's say, sitting in the courtroom available for, I guess it's a jury at that point, same thing occurred last week. The firm had created two organizational charts to show the complexities involved with all the corporations and then left them on the easels, and they were actually referred to at a couple points during the arbitration by the panel. So it's really important and I couldn't agree more.
Dan Small: I know demonstratives can be used for a variety of purposes: openings, closings, experts and summary witnesses. Any fun stories about [the] demonstratives?
Scott Duval: Yeah, probably a couple, and you know one thing while I think through what a good story is, there are quite often times where arbitrators, juries, judges will think we are actually in a courtroom creating demonstratives as we go through a presentation. And the truth is, it's just a piece of software sometimes, a presentation software that allows the presenter to do things with documents as they are being utilized, whether that's, "Hey, let's go to page three and show me paragraph 5.2, and if you notice the last sentence," and we highlight it on the fly. So a lot of times if someone's not in a courtroom or using presentation software, they think, oh, they just created a demonstrative right there in the courtroom. One of the kind of more interesting stories that I recall that happened probably a couple years ago is in New York, in the Southern District of New York — 500 Pearl Street, as many people may be familiar — the trial team I was working with was representing a musician who had been sued for copyright infringement related to a song. And there have been probably six or seven of these. I've been fortunate to be, I think, in nearly all of them, or a lot of them, because it's a small community. What we were actually able to do in that trial was create a graphic which highlighted this artist's extensive career without leading the witness, which of course would have been objected to. The plaintiff had put some emphasis on this piece of music having created or really made this defendant's music career, and it was in I think 2013 or 14, and through this examination, this section, they needed to show this wasn't true. It's kind of hard to visualize, but what we created was a blank grid with categories such as awards, performances, album releases, that sort of thing, that all occurred prior to the release of this work. And as the examining attorney was going through the direct with the witness, he would ask questions like, "What happened in 2013 or 12?" or what have you. "Did you perform?" And then the artist would say, "Well yeah, actually I performed at," you know, the Olympics or whatever. And "I performed in Wembley." And as the witness is testifying, I am populating these cells. And by the time it was done, I have 30 or 40 cells that have been populated with awards, concerts, album releases, etc., so that by the time the 15- or 20-minute examination is done, boom, a chart's there built with 30 or 40 entries showing all the work that this artist had done before the release of the alleged infringe, infringing work.
Dan Small: That's great. Judge Young in his wonderful discussions of evidence talks about a graphic that was put together in an airplane crash case some years ago, where they did not have a video of the plane coming in, but by putting together a graphic with the cockpit recording, the distance markers, the altitude meter and all these different factors together, they basically recreated, essentially, the crash, and it was just a stunning piece of work.
Scott Duval: It's really remarkable how much is at the fingertips of a trial team that they may not be aware, whether it's what they would refer to as an animation. Many, many items are available, whether it is mixing the media as you describe. It's pretty interesting and really is wonderful to be able to kind of be part of it.
Dan Small: And Scott, you and I have worked together on a couple of graphics over the years, and I know that it's just a great experience to be able to think about those things and pull them together. We are unfortunately out of time for this episode. Scott, would you come back? I walk to talk, shift the talk a little bit to the more practical do's and don'ts and how-to's of demonstratives. So if you would come back for another episode, I would be extraordinarily grateful.
Scott Duval: I would be more than happy to, really appreciate it. No problem at all.
Dan Small: Scott Duval is managing director of FTI Consulting. Thank you, Scott, and we'll talk to you again.
Scott Duval: Thank you for having me, Dan.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
