By Dr. John F. Sase
Gerard J. Senick, general editor
Julie G. Sase, copyeditor
William A. Gross, researcher
“We are all inherently visual communicators. Consider kindergarten: crayons, finger paints, and clay propelled our expression, not word processors or spreadsheets.”
—Nancy Duarte, “Slide:ology: The Art and Science of Creating Great Presentations” (O’Reilly Media, 2008)
This month, we will discuss the approaches and methods for using PowerPoint (PPT) in presentations delivered by Attorneys and Expert Witnesses in jury or bench trials within the “New Normal.” We will address the use of forensic media that has developed from Twentieth-Century instructional technology. We have chosen to explore this issue because a presentation frequently gives the last impression about a plaintiff or defendant to the judge or jury before they retire to deliberate a verdict.
A Forensic Expert should possess both the qualities of relevant experience and the peer-conferred license of a Ph.D. Also, we may note that Experts who teach or speak publically tend to maintain an excellent working knowledge of modern media technologies. Of these, PowerPoint and comparable slideware have emerged as the most popular tools in many areas.
Even though PowerPoint remains the most-used media tool in business meetings, in the classroom, at court, and now on Zoom, the tool known as PPT also represents one of the most abused technologies. We hope that our discussion provides information that will help to stop such abuse in the field of Law and will aid attorneys in the winning of cases. In 2011, a Sliderocket Survey stated that Americans would give up sex to avoid PowerPoint presentations (www.clearslide.com/product/sliderocket/).
Not much has changed over time. It seems that one-fourth of the professionals surveyed by Sliderocket reported that they would rather forego having sex than sit through yet another PowerPoint presentation (Ugh!). Also, more than one-fifth of respondents would rather do their taxes instead of attending a PowerPoint presentation. Another fifth preferred the option of a trip to his/her dentist. Finally, one-third of the respondents admitted to falling asleep at least once during such presentations. The results of this survey by Sliderocket, now part of ClearSlide (clearslide.com), underscores the statements that presentation gurus have made about PowerPoint abuses for more than two decades.
Suppose that this survey indeed does reflect the attitude of working society at large. In this case, we must pause to ask why—especially before considering using this media technology on a captive audience in a Court of Law. However, technology is not to blame. The above research resounds loudly and clearly on this point. Instead, the human element provides the content choice, quality, design, and delivery of these presentations. These elements determine whether or not a presentation “turns on” or “turns off” the presiding judge and the members of the jury.
In order to counter the perceived abuses from the use of PowerPoint, leading presentation author Seth Godin (www.sethgrodin.com) circulated Really Bad PowerPoint (and How to Avoid It), a ten-page e-booklet published in 2001 (www.amazon.com). Godin lays the blame on Microsoft’s doorstep. He states, “Microsoft has built wizards and templates right into PowerPoint. And those ‘helpful’ tools are the main reason we’ve got to live with page after page of bullets, with big headlines and awful backgrounds. Let’s not even get started on the built-in clip art.” Godin continues to explain that people do not use PPT as a communication tool. Instead, they use it as a crutch to accomplish three things, none of which leads to a good presentation. These include:
• Using PPT as a teleprompter from which the presenter reads the slides
• Using printed copies of “Slideuments” (documents embedded in slides) to avoid the task of writing a formal report. These copies then are handed out by presenters to members of the audience.
• Using the handouts of the slide set to make it easier for their audience, presenters attempt to remember everything—sort of like reading slides, but better.
According to Godin and others, the bottom line is that “normal” PowerPoint went out of sync with how human beings learn and communicate. Through six bellwether trials about Vioxx (a non-steroidal anti-inflammatory drug) in Texas, New Jersey, California, Alabama, Illinois, and Florida around 2005, PowerPoint took on a life of its own with the help of a lot of fertilizer from Microsoft, which joined the battle to defeat the beast.
Microsoft has published one of the top books on how to avoid the problems while providing a case study of great interest to attorneys. Writer, speaker, and consultant Cliff Atkinson wrote “Beyond Bullet Points: Using Microsoft Office PowerPoint to Create Presentations That Inform, Motivate, and Inspire”(Microsoft Press, 2008, 3rd ed., ebookexprees.com/?book=0735627355).
Atkinson served as the Presentation Consultant for the plaintiff in the case of the estate of Robert Ernst v. Merck and Co., Inc. (2005), known popularly as the Texas VIOXX case.
Ernst died after taking VIOXX. In an FDA Memorandum of 30 September 2004, David J. Graham, MD, MPH, Associate Director for Science, Office of Drug Safety, cites evidence that 27,785 heart attacks and sudden cardiac arrests occurred from VIOXX before Merck took it off of the market in 2004.
After finding an edition of Atkinson’s book online during trial preparation, media-savvy attorney Mark Lanier retained the author to join the team in Texas. With this strategy, Lanier went to court with a full presentation-arsenal in which he successfully integrated media technology with his down-to-earth courtroom style. Lanier opened by introducing Carol Ernst, Robert Ernst’s widow, and their daughter to the jury. Then Lanier passed in front of the jurors, making eye contact with each of them individually. Knowing his audience, all of whom were high-school graduates in their twenties and forties from a wide range of professions, Lanier pushed aside the podium to put himself on a more personable level with the jury.
Standing alongside a ten-foot screen that he used as a backdrop, Lanier presented a PPT that told the tragic story of Robert Ernst emotionally. Lanier transferred his emotional appeal to the engaged jurors in a choreographed presentation that projected the integration of words, images, and colors into an absorbing media experience. Merck’s legal team delivered a “normal” PPT exhibit complete with bullet points, impersonal images, and detailed scientific graphs and data in rebuttal. The rest is history. Form follows function. The jury decided in favor of the plaintiff and delivered a $253.4 million verdict in 2012. Afterward, this lawsuit rose to prominence as the first of over 3,800 Federal and State VIOXX cases to go to trial.