Kerri Ruttenberg is a partner at Jones Day and the Head of Litigation for the firm’s Washington, D.C. office. She has tried cases in state and federal courts around the country, representing clients in a broad range of cases including white-collar defense, False Claims Act actions, and antitrust merger challenges. Kerri recently authored the ABA-published book, Images with Impact: Design and Use of Winning Trial Visuals, which has been praised as “groundbreaking” and “a must for the trial lawyer’s library.” Based on nearly 20 years of trial experience, working with graphic designers and interviewing jurors, Kerri frequently conducts seminars for lawyers, judges, expert consultants and marketing executives on the effective design and use of visuals for trials and other professional presentations.

Episode Notes

Images with Impact: Design and Use of Winning Trial Visuals (Amazon)


PolicyViz Podcast Episode #135: Kerri Ruttenberg

Welcome back to the PolicyViz podcast. I am your host, Jon Schwabish. On this week’s episode, I get to walk about 10 blocks east of my office to meet with Kerri Ruttenberg who is the author of new book Images with Impact: Design and Use of Winning Trial Visuals. It’s a really interesting new book on how to use data visualization for lawyers especially in trial settings and I am always interested in how different fields are using data visualization. So I met up with Kerri at her office here in D.C. and we chatted about the book and what it’s like to present information and data to a jury. So here is my interview with Kerri.

Jon Schwabish: So I am here with Kerri Ruttenberg, author of the book Images with Impact: Design and Use of Winning Trial Visuals. Kerri, welcome to the show.

Kerri Ruttenberg: Thank you.

JS: Great to chat with you. Great to have you here. I am excited to talk to you about a book of data visualization for lawyers.

KR: Right.

JS: Now there’s all these different fields, everybody is excited about visualization. Could you start by telling folks a little bit about yourself and how you came to say “I want to write a book on data visualization?” I am assuming you weren’t defending clients because they are making bad Data Viz.

KR: No. There have been no data visualization prosecution that I am aware of yet.

JS: All right.

KR: No, so I am a trial lawyer, I’ve been trying cases for about 20 years and have a bit of a visual and psychology background, and so this was sort of an interesting niche that I didn’t know existed before I started practicing. I found it absolutely fascinating and realized that there was an appreciation for the need for better visuals amongst my legal colleague, but no idea how to do it. And so, I started teaching lawyers about 13 years ago, got some fabulous feedback from those programs and even people who would come multiple times to sort of refresh their learning. I started having people say, “What if there’s no budget? Can you teach some graphic design?” And so with the huge caveat that I am not a trained graphic designer and I strongly encourage my colleagues to hire those folks as I do when there’s money in the budget. There’s not always money in the budget. And so I wanted to be able to help folks improve their own visuals and frankly communicate more effectively and efficiently with others, and eventually decided there ought to be work that’s really geared toward lawyers. The funny thing is now one of the biggest pieces of feedback I get on the book is from people who say, “You know this isn’t just for trial.”

JS: You are right.

KR: Which is a good thing that they recognize that.

JS: Well, your publisher probably told the same thing, if you write a book for everybody, nobody is going to read it.

KR: Correct.

JS: So you pick that group. So paint a picture for us of what it means to visualize data for a lawyer, like my image of a courtroom is Law & Order.

KR: Where they don’t use a lot of visuals.

JS: They don’t use a lot of visuals.

KR: Yeah.

JS: So paint a picture for us of what it’s like to be in the courtroom and showing visuals. Is it big TVs? Is it projectors? Walk us through it.

KR: It has evolved tremendously over the years as you might imagine, but it is still highly dependent on the courtroom. Some jurisdictions are known for being more high-tech; you will see that a lot when there’s a newer courthouse; a courthouse that has been renovated, usually they incorporate more technology. I have been in some courtrooms, and I am thinking of one in particular that was a four-month long trial in a Federal Court that was considered a high-tech courtroom. And at one point I have sat back and I counted and there were 19 monitors that were being used, and that was because every single juror had a monitor essentially at [crosstalk 00:04:00] in the jury box, there was one at the witness box, the judge had one, the clerk had one, each of the counsel tables had multiple because it was a multi-defendant trial. And then there were two large screens because it was a highly public trial that were aimed at the audience that was watching. So that’s one extreme.

Then I’ve been in other courtrooms where there’s basically nothing provided so you have to bring in what you need and I’ve had to bring in projectors and screens and laptops and cords and get permission from the court. Usually it requires a court order, a lot of times you can’t just bring equipment into a courthouse like that. So it really runs the gamut and the takeaway is you have to know in advance what your courtroom is going to be like. You got to plan for it. I tell people you should sit in a jury box when there’s nobody in the courtroom so that you have a sense of what they can see whether there are obstructions, where you are going to need to be showing visuals to witnesses, layouts of courtrooms differ. It’s pretty easy to figure it out, you just need to go in advance and determine what you are going to need and how you are going to need to show it.

JS: When you are speaking, do you get to set up the space as you like so you get to put the projector where you want it, you are able to walk around, I mean, how does it – when you are setting things up, what are the – I am sure there are restrictions, what are the rules and restrictions?

KR: That’s a really great question and it depends a lot this time on the judge and how much the judge wants you walking around. I am five foot one, I hate podiums, I hate them because I feel like a head.

JS: Right.

KR: And so when I am giving a talk in any other setting, I do not use a podium, I can’t stand them. Very often in courtrooms you have to stand behind the podium, so usually I migrate a little bit to the side because I really can’t stand them. But what I tell folks is think about ways that you can engage with the jury that allow you to get from behind the podium. So one of those ways is to go a bit low-tech. And if you can combine using courtroom presentations that involve monitors and screens to presentations that might involve for example an enlarged foam board where you can actually walk that across and show it to the jury, that’s a great way to get out from behind the podium and I’ve done that before in a trial where I had to be behind the podium, except when I was showing one of those visuals. So that’s kind of one way to beat the system in a sense.

JS: Interesting. Now, again my experience with courtroom is relegated to TV movies, so when you are speaking, you are presenting information, are you often interrupted by opposing counsel, by the judge and so how do you – if you are making a case, if you are making an argument, you are building up this momentum let’s just say as you are showing things, how do you deal with these interruptions that are different right than like the kind of talks that I give to a bunch of researchers, the interruptions are, “I have a question about this”?

KR: Oh boy! Oh my goodness! And they can ask questions, the jury can, which is so frustrating; because if they were allowed to, then you would know exactly where you need to course correct or where their heads are and address it. So it’s two issues. One of them is the question issue, and I design my visuals knowing that that’s one of the most unique aspects of presenting to a jury. In pretty much any other setting, even if people aren’t raising their hand and asking questions, you can pause and try to elicit them, or you can incorporate something interactive in the program that you are delivering to make sure that everyone is on the same page with you and you cannot do that in a jury setting, you cannot interact with a jury like that.

Now, some judges will allow jurors to submit questions. They don’t show that on Law & Order. But the little behind the scenes is that usually what happens is the jury will have a question, they will write it down, they will give it to the foreperson who will then give it to the judge, who will then – this is the part that’s not on Law & Order – without the jury present, call counsel into the room, and then we will have a discussion with the court about whether we are going to answer it and how we are going to answer it. And then it ends up getting answered usually by the judge through some kind of, if not scripted, then something that the judge has sort of cleared with the lawyers. They don’t all do that, and sometimes that can lead to appeals if they say something that they couldn’t have.

But the other issue that you raised is a distinction I think when you were talking about the interruptions between your opening statement and closing argument and then the trial itself. With opening statement and closing argument, that’s what’s much more akin to the presentations that you and I give to friendlier audiences. And there are typically not many, if any, interruptions. And in part, it’s because there’s a bit of a professional courtesy, it doesn’t look very good to the jury if you are objecting during an opening statement and a closing argument, it absolutely happens, it’s happened to me, and then you just kind of have to roll with it and then get back on track. Where the interruptions come up more of course is where there are objections during testimony, and that maybe where you have an expert witness on stand – like you, my husband is an economist, he does it in the context of consulting a lot with lawyers and testifying as an expert witness – fact witnesses, I am often using visuals with; and if there are interruptions, they are the same interruptions that are happening throughout the trial with non-visual testimony. So the jury ends up getting used to them and you again have to kind of roll right back in with the presentation.

JS: Do the things that you talk about in the book – and we should talk specifically about the book before we do that – so the things you talk about in the book, do they vary a lot by the type of law that someone’s practicing?

KR: I would say they do to the extent that certain areas of law are more typically presented to juries whereas other areas are more typically bench trials where the judge is making the decision. If you are in a legal field where there’s more arbitration work for example, then sometimes it might be a panel of judges and it might be in a setting that’s not a courtroom. So to the extent, just like you have to consider your audience for any presentation, you need to consider the differences between presenting to a jury versus a judge.

JS: Let’s talk about the book specifically. Do you want to walk us through the book because this, in some ways it covers like a full gamut, it’s not a book just on presentation skills, it’s not a book just on Data Viz, it’s sort of the whole communications about presenting in a trial.

KR: That’s right, and that was actually my goal with the book. It really was, I mean, I am a lawyer, I try cases, I don’t write books. And so, really what I wanted to do is create a resource that, at any stage, a lawyer could look to it, turn to it and have something helpful. And I should caveat it again that since the book has come out and I’ve been doing a lot more presentations, the audience is broadening, it really isn’t just lawyers, it’s certainly not just trial lawyers, but I’ve been talking with expert witnesses and professors, marketing executives, folks who sort of understand that professional presentations are a little different than advertising campaigns. And so, it has provided a lot more breadth of information for those folks; but in terms of walking through the book, I view this as a sort of four categories of information and I divided the book into four parts. In the beginning, part 1 is really why all this matters, why do we need to think about using visuals. We are starting to recognize that we need it. But I think when you start looking at the statistics and the studies that have been done, both in the jury context and outside and you see the dramatic impact that effective visuals have on communication, it sort of scares people into, “Oh my gosh, I really need to think about this,” The first part is why it matters.

The second part are what I believe are some of the most common visual tools that are used not just in the trial setting but in any professional setting. So that’s going to encompasses things like timelines and charts and graphs and photographs and illustrations and diagrams. And what I was trying to show here is the typical kind of visual tool, what works and why it works and what doesn’t work and why that doesn’t work. And to help me do that, as I know you are well-aware, I use help and I had four different graphic design firms who helped create some of these visuals. I wanted to show different styles, different approaches to the same concept. In some spots in the book I actually have a different design firms that have done a design for the same concept, because I don’t want people thinking that there’s only one right way to do it, and that can become paralyzing.

Then part 3 is graphic design, and as I was saying before, that came from folks saying to me as feedback to the live presentation, “Can you just show us how to do some of this stuff and what really matters?” and so for a graphic designer this is really, really basic.

JS: Yeah, for the rest of us.

KR: For the rest of us who weren’t trained in graphic design, it’s concepts like alignment and proximity, color and whitespace and contrast that when I started learning about those concepts, my visuals dramatically improved, and so I passed those along. And then the last part of the book is really strategy, strategy for working with designers, strategy for getting started, strategy for using the graphic designs, presenting information in court and when to use high versus low tech. And then of course I love talking about misleading visuals, there’s a whole chapter about misleading visuals and what can go horribly wrong.

JS: Well, it’s funny because as I was reading the book, I was thinking about one of my first presentations to a room of lawyers and talking about the hazards as it were of pie charts and saying, “Look you can’t really figure out the exact value associated with this slide in this pie chart.” And the response was, “Well, sometimes we don’t want the judge or the jury and opposing counsel to figure out what the exact value is,” and that was interesting sort of response.

KR: I would say if you are designing or picking a design to mislead, that’s a problem. If instead though, the point that you are really trying to make is not the exact value but something more conceptual, I don’t have any problem with that. And I would say that’s one of the other areas that lawyers need to design for more than they do. I think we all recognize the need for data visualization, it doesn’t mean we are good at it but we recognize the need for it. What not everybody really recognizes is the importance of visualizing concepts, what I call turning themes into pictures, and it doesn’t mean having a picture of two hands shaking, it’s something that is not trite, it is unique, it is catered to the particular point that you are trying to make for that particular case.

JS: Now, you talk about photographs, one of the most interesting things that I found in the book was this rule 403 which – well, I am going to let you explain it, because I was fascinated by this rule and this whole section in the book about specific things that obviously I would have no experience with. Can you talk about that a little bit?

KR: Yeah, absolutely. I think rule 403 is one of the most important distinctions between presenting in a trial setting and presenting anywhere else, really anywhere else. When you talk about photographs, people often say and they are right that photographs are attention getting and appeal to emotion and have all of these advantages over other types of visuals. That’s great, but there is a rule, it’s rule 403 and the rules of evidence, it’s a federal rule but states typically have either adopted it or have their own similar rule. And in a nutshell, what it says you can’t do is introduce something into evidence in a trial or show something even if it’s not being introduced if its prejudicial value outweighs its probative value. If it is unfairly prejudicial is another way that it’s framed. And one of the ways that you would violate rule 403 is if you were using a visual or a piece of evidence that is by design trying to appeal to emotion. So something that would be a fantastic visual in another setting because of its appeal to emotion, would likely be affirmatively excluded from a trial.

JS: Yeah. It’s interesting because – and there’s a few examples that you write about, and the first few examples make me wonder a little bit because it’s sort of not a stock photo but sort of a standard photo you might get but it has a picture of a person on it. And the advice that you’ve given here is, instead of having the person scanning the person’s face, you get a different picture when there’s a person in the background, but you may not see their face. But then there are the ones that a little more egregious where there’s a whole discussion here about like basically a mug shot where the opposing counsel wrote the word guilty across it. So how do you, I guess, balance? The one where you write the word guilty seems obvious to me, but the first case seems like there’s a lot, there’s a fine line there.

KR: Sure. And the point with respect to the faces is not so much rule 403 prejudice as if it’s distracting attention. Our eyes are naturally drawn to faces, and so if the image of the person is not really the point of the visual, if that’s not really the main thing that you are talking about, then it can be affirmatively distracting if you’ve got a picture of someone’s face next to what you are trying to talk about. So I make a few suggestions in the book as you point out for how to address that and basically not have the face be the focal point. Really the rest of it is about the tone of the photograph, so if you have an image of say in a family law case and there’s an image of a little boy on the screen that’s pretty neutral, you will probably get away with that. If it’s an image of a little boy crouched in a corner, crying, what is it that you are trying to say about that? That might be a perfectly appropriate visual for a marketing campaign or something like that. But in a trial setting, what is the point of that visual? And frankly that’s where I advise folks to always start thinking about their visuals, it’s really two questions: what’s the point? And what do you need on the slide or the enlarged board or whatever to convey that point. And then you design the slide around the slide around the point that you are trying to make, it’s the same thing for data visualization as for thematic visualization.

JS: Right. It’s just really interesting. You had mentioned earlier about tools and so I am curious about the tools that your colleagues use when they are making slides or visuals. And also is there a movement in the legal field towards bigger and more data and how does that change how lawyers work with data, other skill sets that are needed in large firms that maybe weren’t needed 10, 15 years ago?

KR: Well, in terms of the tools that we use, I certainly find that most lawyers that I work with are using PowerPoint, Keynote, software like that. If you need to do something that requires a more sophisticated software in design or something, they are hiring. I do. I [inaudible 00:20:17] how to use those programs. I am good with PowerPoint, I am not as good as a designer with PowerPoint, and it’s taken a lot of time. And I enjoy it and practice, most do not. And so to just start with PowerPoint, you know what’s coming after that, it’s the templates and the bullet points.

JS: Yeah, absolutely, the swirly templates and all.

KR: The swirly templates, exactly. Hopefully not swirly text but swirly templates, which you can do.

JS: Right.

KR: But that’s really the level that most of us are at, and so I think that’s why the really basic graphic design concepts that I cover in the book and that I teach in the seminars, help a lot because we max the level that you are starting from, you’ve got a lot of you room to improve and you can improve very, very quickly with just a few tips. So that’s really what I would say about what folks are using. I don’t remember the second part.

JS: The second part was about changes in data. Maybe this isn’t your particular area but it just sure is to me because the graphs and the book, like you mentioned, they are timelines, they are flow diagrams, it’s line charts and bar charts I wonder – and I am sure there are legal cases where there’s big data.

KR: Absolutely.

JS: And so in those cases, I guess really the question is: in cases where they are using big data, are there more interactive types of visualizations, not interactive like the jury clicks on or anything or we are just trying to show the sort of bigger datasets, visualize these datasets in a sort of different kind of more modern ways?

KR: I would say yes and no. Typically in cases where there are complexities that involve data, and there’s a lot of them obviously and I’ve been involved in a number of them, usually we end up having an expert witness who’s involved because you have to get that in evidence somehow. That can’t come in through the lawyer. So there needs to be some witness, some way to get that before the jury that complies with the evidentiary [inaudible 00:22:22]. And so, very, very frequently it’s an expert who is not only an expert in interpreting the data but is often an expert in manipulating the data. So our regression analyses, there’s going to be an economist who is testifying and so what I think people are, including the economist, the consultants, what I think people are starting to realize is we need a more effective way of presenting that information and [inaudible 00:22:48] data visualization. And so, usually for me, just because I am a little bit further along than most of my lawyer colleagues, I will take a look at what the economist has given me and I will say that’s great, we obviously need that, that’s going to be in your report, now we need to completely change how that’s being presented to the jury.

JS: The jury, right.

KR: And so I will brainstorm with the economist, sometimes with my graphic consultant, from a trial graphics firm, they’ve done tons of these, they’ve done way more trials than the lawyers have because they just are going from trial to trial to trial. And so they may have seen an effective way of visually demonstrating that same type of data to a jury in other cases and we will put our heads together and figure out a better way to display it.

JS: Yeah, that’s really interesting. And so, when you have that conversation – in your experience, when you have that conversation with your experts, do they push back, do they get – like when you are talking to people do you just hand them a copy of your book and you are like, “Here you go, read this first and now you will understand why I want to do this other approach”?

KR: The only pushback which is usually very short-lived because then they quickly understand we are on the same page is pushback to make sure that we are not misrepresenting the data. I think folks who aren’t as deep in the weeds on this topic will often say to me, “Yeah, I get it, the idea is to simplify.” I never say that, because sometimes complexity is the very theme that you want to convey. My goal is to clarify. And so, as soon as the expert recognizes that I am not looking to simplify in any kind of misleading way – and by the way, in our case, the fact that what you are displaying is complex, is really important. And I want the jury to understand that the complexity is inherent to the process that you are describing or the nature of the data, it’s not complexity because we couldn’t figure out a clear way to show it. And so, once they understand we are on the same page with that and we have the same goal, then we really are working toward the same thing, ultimately presenting the information in a way that’s clear and understandable to the jury.

JS: Yeah. It’s really interesting. I love seeing and hearing about different fields using visualization. Thanks so much for coming on the show and thanks so much for the book, I will make sure that people know about it. So Kerri, thanks so much for coming on the show, it’s been really interesting.

KR: Thanks Jon, I really appreciate it. It’s always fun to talk about this topic when somebody else too appreciates it just as much.

JS: All right. Well thanks everybody for tuning into this week’s episode. If you have comments or questions, please let me know. I will put a bunch of links to Kerri’s work and to her book Images with Impact on the website. So until next week, this has been the PolicyViz Podcast, thanks so much for listening.