How to Think About PowerPoint
I have something of an extemporaneous public speaking background, and did a fair amount of competitive debate back in college. There are ways in which opening and closing arguments remind me of those competitions. Certainly, both are helped by a polished speaking style and a good ear for argument. And when I listen to opposing counsel take an unsupportable position, my first instinct is to smile and consider how foolish I intend to make them look in my response.
But apart from radical differences in tone, one major distinction between jury addresses and competitive debate is the use of PowerPoint. While I’m sure that there are parts of the country where lawyers stroll over to the jury box and simply tell a story, where we practice in New York virtually every trial (and many oral arguments) begin and end with a PowerPoint presentation by both sides. I have my sympathies for those who preferred a simpler time where you could start a trial with a little light slander before gobsmacking the other side with witnesses they’d never met and documents they’d never seen. But those days are solidly behind us.
But what should you put in your opening or closing PowerPoint? And what things are likely to get you in trouble? A comprehensive guide to PowerPoint is beyond the scope of a single blog post, but even thinking properly about the software can be very helpful.
The first thing to consider is why precisely PowerPoint is so widely used, not just in court but also in business. I would argue that like Excel (or for that matter, email) PowerPoint is ubiquitous not because it perfectly solves a single problem. It’s widespread because it is a tool that can (sometimes imperfectly) be used to complete a large number of common tasks. Some of these tasks have basically nothing to do with oral advocacy and if you copy PowerPoint decks made for them you will be led astray.
For example, you’ll often see investor decks, pitch books, CLE materials, or other marketing documents that were prepared in PowerPoint. On a metaphysical level, you could project them on a screen behind a person while they spoke, but that’s not really their purpose – they’re designed to be thumbed through at the reader’s pace, not presented in a way that allows the viewer to be persuaded or glean useful information.
Additionally, while mediocre PowerPoint presentations stuffed with bullet points are routinely criticized, this type of weak presentation is also a key use of the software. Presenting to a group isn’t easy and doesn’t come naturally to many people. One of the major features of PowerPoint is that it allows a bad speaker to limp their way through a marginally coherent presentation that would otherwise be an unfocused, confusing, disaster. You’re never going to win a swimming race in a life-vest, but it certainly beats drowning.
Many lawyers fall into this “please don’t let me drown” camp and use PowerPoint as a crutch to get through an opening or closing that they really aren’t suited for. But the reason that PowerPoint is ubiquitous at trial is that even very skilled lawyers – who could effectively sell a jury with just the power of their voice – have found uses for the software that go beyond “watch me read some bullets to you.”
What should go in a PowerPoint? Your guiding principle should be pictures, not words, that bolster and provide structure to your argument without literally writing it down.
1. Pictures Not Words
A PowerPoint is not a legal brief or even an investor deck. The jury is not going to have a chance to read it at their leisure. Any time that they do spend reading the words on the screen will come during your presentation when you generally want them to be listening to you.
In addition, every word you put on a slide is a potential weapon for your adversary. In jurisdictions where you have to disclose slides in advance, a list of bullets may telegraph your argument and allow the other side to pre-empt it. Even where slides are not exchanged, they can still become a liability. I’ve seen opening slides used as fodder for cross examination at trial, where a plaintiff’s lawyer seized upon an exaggeration by their adversary and forced the defendant to admit that its own lawyer had not been fully truthful to the jury. Needless to say, that was a disaster and the defendant ended up settling before the trial was over.
2. Pictures that Bolster Your Argument
So why pictures? Because used properly, pictures can convey information or make subtle arguments more efficiently and more effectively than words. For some things this is obvious. If your case involves a car accident at an intersection, a photo of the scene will instantly show the jury the scale and relative positioning of the cars in ways that words never could. Similarly, photographs of serious injuries can relate the severity of harm far more powerfully than words.
But even subtler points are better made or emphasized through pictures. You can tell the jury that the defendant is a big business, but showing them a photograph of a skyscraper with the defendant’s name out front or a giant factory full of workers and huge machines makes the same point powerfully and instantly. Do you want to highlight how much written evidence there is of a particular fact? We’ve made slides showing the various papers literally piling up on a desk. Do you want to emphasize how much time has passed? Show calendar pages flipping or the seasons changing. In one case we wanted to highlight just how old a claim from 2008 was, so we used photos of the original iPhone and a young, dark-haired pre-Presidency Barack Obama.
Some of your pictures are likely to be trial exhibits. But you’ve got to be selective, particularly in opening. If you’ve got a true smoking gun – a document that looks terrible for your opponent and requires no explanation, then you absolutely should show it. But anything that goes on the screen is competing with you for the jury’s attention. You have to ensure that they only see images that deserve to win that competition.
3. Pictures that Provide Structure
You don’t want to telegraph your argument to opposing counsel or toss up bullets for the jury to read. But it’s fine – indeed good – to telegraph your argument to yourself and to help the jury to follow along.
Once you’ve figured out the set of visuals that sell your argument to the jury you are going to want to work them into your presentation and practice delivering it. If you’ve done your job right, those slides will provide a visual cue for the words you plan to use and allow you to reduce the notes, if any, that you require.
Changing slides also telegraphs to the jury when you’ve changed topics and gives them a cue to listen carefully to the next topic. So, if there are parts of your presentation that don’t come with an obvious exhibit or visual, take time to come up with one. Ideally every slide will be a home run, but there is enough value in an easy to follow structure that you can accept a few base hits to keep the path clear.
4. What Shouldn’t Go in Your PowerPoint?
What to avoid? First and foremost, you want to avoid slides that will lead to a mistrial or reversal. If you can’t say it, you can’t write it on a slide, so this includes evidence rejected in limine, information about insurance, and other material that you can’t say in closing.
In addition, there are a number of ill-advised slides that have derailed multiple trials. These generally emerge out of the criminal context and illustrate the additional rules that prosecutors have to live by when it comes to trial presentation.
The first is the “jigsaw puzzle of reasonable doubt” slide, where a prosecutor takes an image of a famous person or thing – examples include Abraham Lincoln and the Statue of Liberty – and displays it as an incomplete jigsaw puzzle with a piece or two missing. “You see,” the prosecutor says. “You don’t have every single piece of evidence, but you don’t have any reasonable doubt about what the picture is.” Numerous courts have held this to be a radically incorrect and prejudicial statement of the burden of proof and, in at least one case, have overturned convictions where it was used. [1]
Another repeat player in the “PowerPoint reversal” body of caselaw is the “Guilty Stamp” slide where a prosecutor displays an image of the defendant – sometimes a sinister mugshot – and stamps the word “Guilty” over it. In one case, convinced that this was too subtle, the prosecutor instead wrote “GUILTY GUILTY GUILTY.” [2] This sort of slide has been variously characterized as “vouching” by the prosecutor or an affront to the presumption of innocence, but in either case it has led to reversal. [3] Personally, this feels a bit like pearl clutching – I don’t think that any jurors are terribly confused about whether prosecutors believe that the defendant is guilty. But given the caselaw, it’s a form of visual argument best avoided.
But beyond literally prohibited slides, you should also avoid slides that are designed for other use cases of PowerPoint. Your firm may have beautiful, heavily branded slide backgrounds designed for pitch books – leave them at home. Your CLE presentation slides may be a nightmare of bullet points and long block-quotes – don’t replicate the style.
PowerPoint is a valuable tool and there are always going to be new and innovative ways to leverage it in your presentation at trial. But by paying attention to why it has utility and what use cases are (and are not) appropriate, you can get an advantage over the competition as they limp their way through a tired, cluttered opening.
[1] See People v. Wilds, 141 A.D.2d 395, 397–398 (1st Dep’t 1988) (ordering new trial after Abraham Lincoln jigsaw puzzle slide used); People v. Katzenberger, 178 Cal. App. 4th 1260, 1267 (2009) (finding that jigsaw puzzle of the Statue of Liberty constituted prosecutorial misconduct).
[2] See In re Glasmann, 175 Wash. 2d 696, 706 (2012) (ordering new trial after “GUILTY GUILTY GUILTY” slide used).
[3] See State v. Rivera, 99 A.3d 847, 854 (N.J. App. 2014) (reversing conviction over use of “GUILTY OF ATTEMPTED MURDER” slide).
