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Volume 30, Number 4 (1996) reprinted by permission of the Law Review cite as 30 U.S.F.L. REV. 903(1996) THIS ARTICLE EXPLORES the increasingly blurred boundaries between popular culture and the practice of law. It is quite fitting, then, that the company which employs the coauthors, Legal Video Services ("LVS"), finds its roots in both Hollywood and civil practice.1 One of LVS's first big projects was ETSI v. Burlington Northern.2 That case taught both Mr. Stachenfeld and Mr. Reichek a great deal about the power of the video medium to enhance a lawyer's ability to tell the client's story to the jury. ETSI was an antitrust case in which the combined power of the railroads attempted to block the plaintiff's new technology from entering the coal hauling business. It was scheduled to be tried in federal court in Beaumont, Texas; however, most of the discovery took place outside of the state. Consequently, both the plaintiff and the defendants videotaped the majority of the depositions with a view to presenting most of their witnesses via videotape. For trial, LVS designed and con- structed a courtroom installation that included twin large screens (each 100 inches on the diagonal). A not wholly unexpected condition developed during the early stages of the trial: the jury began to pay greater attention to testimony that was being presented via videotape than to live testimony. The Texas Rules of Civil Procedure allowed litigants to summarize deposition testimony for the jury. The presiding judge in the ETSI matter, the Honorable Judge Robert Parker, permitted the parties to videotape their summaries and display them in court. The plaintiff and LVS took full advantage of this opportunity. The taped summaries were produced with the same techniques used in broadcast journalism. Mr. Stachenfeld and Mr. Reichek shot them in a makeshift studio they built on site in Beaumont; the studio contained a teleprompter and professional lighting and sound equipment. The talent, a lawyer from the plaintiff's law firm, had been chosen after testing on videotape by a focus group because he "played" to the local population. In short, the plaintiff sought and achieved the goal of making their summaries look like they came right from the network news. I. Philosophical Preface: Storytelling Via Television Since ETSI, LVS has continued to explore the degree to which Marshall McLuhan's maxim, "the medium is the message,"3 applies to the use of electronic media in litigation. During this time, two assumptions, that storytelling is central to litigation and that visual communication has substantive and stylistic components, have driven the work at LVS. A. Courtroom Storytelling First, powerful litigators are effective storytellers. Attorneys need to educate and entertain their audience from voir dire to closing argument using a variety of tools to portray their themes. Many rely on classic storytelling techniques as vehicles to convince the jury whom to reward and whom to punish. The significance of storytelling in the courtroom is grounded in an important parallel between our system of jurisprudence and fables: both are driven by a personal and thematic "protagonist vs. antagonist" structure. The common law system is adversarial; parties square off against one another seeking victory, not compromise. However, the violence is removed from courtroom combat. The struggle takes place more abstractly as the courtroom becomes the "theater of battle." If violence is the primitive ex- pression of the drives dealt with by mythology, the courtroom permits a more advanced and abstracted expression. The best courtroom stories, and therefore performances, are almost mythic in structure: good vs. evil, man vs. nature, big vs. small, innocence vs. deceit, etc. For example, in environmental actions, litigators frequently paint portraits of large and sophisticated corporations, motivated by profit rather than principle, running roughshod over the environment and its inhabitants. Intellectual property disputes often pit the entrepreneurial spirit versus the parasitic thief. Dominance, deceit, and betrayal often provide the thematic backbone in many discrimination cases. Criminal prosecutors attacking the Cosa Nostra frequently dwell on the bloody acts perpetrated by the defendants. Courtroom storytelling sounds simple, yet it is actually quite difficult. Not all cases are as inherently drama-laden as the O.J. Simpson or Rodney King affairs. Instead of bloody gloves or incriminating videotape, most litigators have to struggle with sixty-page lease agreements or complex insurance contracts. The key witnesses are not individuals like Kato Kaelin, but hydrology experts or claims examiners. Bringing nondescript testimony and evidence to life is one of the principal challenges of modern litigation. B. Visual Storytelling Second, visual communication has both a substantive and a stylistic component.4 Both "the message" and the way in which it is communicated matter. Every culture has certain boundaries or parameters that define the acceptable style or language of presentation within that group. For example, if you travel to a different country, you will notice that their billboards, newspaper and magazine ads, and television programs simply look different than they do in the United States. The message (e.g., "Buy Coca-Cola" or "Eat at McDonald's") might be the same; however, the method of delivery and the arrangement of the symbols are not. Part of this cultural vernacular is formed and conveyed by television, especially in the United States. Americans obtain a great deal of information by watching television. News programs like 60 Minutes, news networks like CNN, and fictional shows (soap operas, police programs, etc.) cast a powerful spell on popular opinion. The foregoing phenomenon is so powerful that it has become an important part of the political process. Some politicians and political cam- paigns become inextricably intertwined with film stars (Ronald Reagan and Clint Eastwood), with television characters (Dan Quayle and Murphy Brown), and with advertising slogans (Walter Mondale and Wendy's "Where's the beef?" campaign). Visual images, such as Willie Horton's mug shot or Michael Dukakis in a tank, play key roles in some campaigns. Americans are spending less time reading and more time watching television. As the Rodney King trial demonstrated, issues, like police brutality, which had received a fair amount of previous attention from the print media suddenly became hot topics once video entered the picture. Many of the most powerful visual symbols have a corporate base. Even before Andy Warhol, American artists were integrating industrial slogans and logos into their work. Current studies show that before children can read, they can recognize corporate logos. Joe Camel is more familiar to youngsters than Mickey Mouse. Abroad, the Coca-Cola bottle or the Golden Arches of McDonald's are tantamount to Old Glory herself. At LVS, we create graphics for the electronic medium. These are the tools, the visual metaphors, which our clients use to enhance their storytelling capability. In doing so, we incorporate many of the symbols and techniques used in broadcast television in this country. While we are not integrating the Golden Arches into our graphics, we are staying within the "bandwidth," the acceptable parameters within which activity takes place, of the cultural vernacular. We design courtroom graphics with a view to visual storytelling, keeping in mind the visual frame of reference of American jurors. The remainder of this Article will focus on how our work in one case illustrates the foregoing themes. II. The Maxus Story: A Saga of Greed in the "Go-Go" Eighties The case in question, Maxus Corp. v. Kidder, Peabody & Co.,5 symbolized the corporate and individual greed of the "go-go" eighties. Maxus was an insider trading case pitting a Texas company against the East Coast financial establishment and the quintessential symbol of greed in the 1980s, Ivan Boesky. The plaintiff, Maxus Corporate Company ("Maxus") of Dallas, Texas, was in the oil business. Maxus, formerly Diamond Shamrock, was known in Texas as the station at the corner where you got your gas. Most Texans were familiar with the company, its logo, and the prominent role it played in the state's economy. By contrast, the defendants were all "outsiders": Kidder, Peabody & Co. ("Kidder") was a high-powered investment banking firm with headquarters in New York City; Ivan Boesky and Martin Siegel were both well known Wall Street executives. Plaintiff's central allegation was that the defendants had conspired to defraud them during a tender offer, causing approximately $500 million in damages. The Maxus case was being tried in a Texas State Court in Dallas, an excellent forum for the plaintiff. First, there was a strong potential for a hometown jury. Second, many judges in Texas are forward thinking regarding the use of demonstrative evidence. The Maxus story begins in the early 1980s. In 1983, Diamond Shamrock wanted to expand its holdings, and it hired Kidder to help with a tender offer to acquire Natomas Corporation, headquartered in California. Kidder was retained principally because of the strong reputation of its merger and acquisitions specialist, Martin Siegel. In the course of preparing the tender offer, Siegel periodically visited Dallas to meet with Diamond Shamrock representatives. Shortly after each of the meetings, a curious thing would happen: the price of Natomas stock would rise. The unexplained stock price increases caused Diamond Shamrock to call off its first tender offer. When it eventually made an offer, however, it paid twice as much for Natomas as it thought it should. After calling off the first tender offer and before making the second, Diamond Shamrock asked that Kidder and its own attorneys conduct investigations regarding a potential leak of information. Although both reported no leaks, Diamond Shamrock still suspected wrongdoing. Ivan Boesky's fall from grace was a watershed event in the Maxus case. Boesky was eventually charged and convicted of securities law violations, and, in U.S. v. Mulheren,6 testified about four instances in which he made trades using insider information obtained from Martin Siegel. Although Maxus was not one of those four instances, our client was positive that Boesky had not told the whole truth - yet. Maxus hired Jones, Day, Reavis & Pogue ("Jones Day") to pursue the matter, and Jones Day filed suit naming Kidder, Martin Siegel, and Ivan Boesky as defendants. Throughout discovery, all the evidence in the case was circumstantial. As with the ETSI case, there was a concern that many potential witnesses would not be able to testify at trial. Consequently, depositions played an important role in our client's pretrial strategy. We were hired to videotape the depositions, flying to Texas, New York, and Florida in the process. Even after completing discovery, Maxus still had, at best, a circumstantial case. Our challenge was to tie the pieces of evidence so tightly together that the jury would want to award Maxus hundreds of millions of dollars. We needed to design certain graphics to help transform our client's conclusion into a convincing story. III. Early and Often: The Use of Graphics in the Maxus Trial As with most cases, we designed many of the Maxus graphics for use in the opening statement, our client's first opportunity to tell its story to the jury. The judge gave both sides an hour and a half for their opening statement, and Jones Day wanted to take full advantage of this time to simplify and support its central themes. In addition, though bounded by evidentiary and tactical considerations, Jones Day nevertheless desired to push the evidentiary envelope, visually as well as verbally. Jones Day began its visual presentation by grounding the facts in an "event space" rather than a "time frame." The location of events and parties (e.g., geography) figured prominently in their description of how their client had been wronged. According to Jones Day, this case was largely about a homegrown company that was deceived and betrayed by the elite East Coast financial establishment and some of its rebellious offspring. We produced a map as graphic paradigm to introduce the parties and a discussion of the events that brought about the lawsuit. As the accompanying visual demonstrates, the map was designed to emphasize the centrality and prominence of Texas.7 We incorporated state flag designs in the map to resonate with Texans' reverence to their flag. Nowhere in this country is the state flag more proudly displayed than in Texas. During several visits to Houston and Dallas, we were amazed by the ubiquitousness of the state flag. It was clearly an influential symbol, something which did not escape one local entrepreneur. For example, while sitting in a Houston bar, we saw a car commercial that consisted solely of a sixty second shot of the Texas flag waving proudly in a brisk Texas breeze and accompanying narration regarding the deals on prices the dealership offered. At the time of the trial, Pace Salsa was running a popular commercial featuring a cook who tried to feed his cowboys salsa made in New York instead of a local and more authentic brand. The cowboys became enraged and screamed "New York City! Get the rope!" The final image from the commercial was of the cook tied up near the campfire. The New York portion of the map was designed so that it looks as if you could lasso the entire state. Through the use of Digital Video Effects ("DVE") editing, we gave the Maxus attorneys the ability to "fly out" first the New York State flag and from it a highly stylized organizational chart of Kidder containing Martin Siegel in a central location.8 Ten or fifteen years ago, television was a colorful, yet relatively static, medium. The literal bandwidth has not changed; however, motion is not only common, it is expected. Consequently, it is an integral component of our work. A. Plaintiff's Target: Kidder's Deep Pockets Although Kidder was the defendant with the deepest pockets, our client was concerned that Kidder would try to escape liability by disassociating itself from Martin Siegel. If the jury believed that Siegel was an uncontrollable renegade operating outside of the bounds of Kidder's corporate authority, it might let Kidder off the hook. We solved that problem with the "Kidder Team" graphic.9 The accompanying visual was the product of an intensive design process. The placement of figures played an important role in its effectiveness: Martin Siegel was placed at the center of the graphic, his picture designed to be the largest of the group; Siegel's superiors were placed behind him, their pictures smaller and positioned to face him, suggesting that they were his lieutenants; those below Siegel in the organization were placed beneath him on the chart and in smaller boxes; the backdrop was a wallpaper design featuring the term "Kidder Team," which had been used during discovery by Kidder witnesses. The conclusion has been inescapable for nearly everyone who has seen the graphic: Martin Siegel was the leader of the Kidder Team. The plaintiff used the Kidder Team graphic not only during the opening statement to introduce the jury to the principal players from Kidder, but also in their case-in-chief. Directly before the deposition testimony of each of the Kidder witnesses, the Kidder Team graphic was shown. B. Martin Siegel: One of the Best and Brightest To strengthen their case against both Martin Siegel and Kidder, the plaintiff needed to portray Siegel not merely as a central figure of the Kidder team, but as one of the true merger and acquisition stars on Wall Street, the individual who put Kidder on the mergers and acquisitions map. This portrayal would help them convince the jurors that Maxus correctly relied on Siegel and Kidder and that doing so was reasonable. Documents and photographs played an important role. To show Siegel's importance to the industry, plaintiff's counsel used articles from prominent publications in which Siegel was featured. To show his importance to Kidder, we scoured annual reports and found a treasure trove - year after year, picture after picture of a smiling Martin Siegel in the center of a group of Kidder investment bankers. By trial, Siegel had pleaded guilty, so we needed to show him in a rehabilitative light. The government's sentencing memo contained several helpful passages. Most of the foregoing documents were displayed simultaneously with Siegel's photograph in a "video box" in the upper left hand corner of the screen, a technique used frequently on network television.10 Martin Siegel was deposed during discovery, and under the threat of criminal prosecution, took the Fifth Amendment more than 600 times. He even had to be told by his counsel that he could, in fact, answer the very first question posed: "What is your name?" How could we take advantage of his evasiveness? In ETSI, we faced a similar challenge. One of the principal defense witnesses was coached to respond to a certain line of questions with a particular answer, one that would shield his employer from liability. After much deliberation, we decided to present in the closing argument just his answers in a rapid-fire "sound-bite" fashion, allowing the witness to speak for himself. The "variations on a theme" approach was also used in the Maxus trial, however, with a different twist. For closing argument, we created a graphic inspired by the old Hollywood Squares television program. Initially, all of the squares were empty. One by one, Siegel's picture faded into the boxes as a different question about his betrayal was asked. When the ninth and final image of Siegel faded onto the screen, the audio from Siegel's responses to each of the nine questions played in unison: "On the advice of counsel, I respectfully decline to answer on the grounds of my privileges against self-incrimination under the United States Constitution and the constitutions of the states of Texas, New York, and Florida."11 C. Boesky's Role: Liability and Damages The plaintiff also needed to prove that Ivan Boesky participated in a conspiracy with Siegel and that in doing so, caused significant damage to the company. As with Siegel, the plaintiff had little direct evidence regard- ing Boesky and liability. Furthermore, Boesky could not be compelled to come to trial. We went to New York City for three days of grueling deposition videotaping. Mr. Boesky's deposition was taken in Manhattan and attended by more than twenty attorneys. Boesky's attorneys had prepared him well for that event. He wore the exact same outfit each day so that it would be impossible to determine whether he was changing his responses from one day to the next. In addition, he spoke in a very soft voice in an attempt to appear unassuming. Hardly any of the attorneys in the conference room could hear his responses to the questions posed. But the video caught everything without error, every nuance of his face, every inflection of his voice.12 The plaintiff needed to make the most of Boesky's videotape and the documents produced during discovery. We developed a method for integrating the documents and his testimony in which the documents that Boesky discussed during his testimony would dissolve or fly onto the screen. His testimony was cut down to two hours; perhaps only Ivan F. Boesky could hold a jury spellbound for so long, and he did. Professor Arthur Miller of Harvard Law School was overwhelmed by the Boesky presentation. As Professor Miller stated on Court TV: The editing [was] superb. You don't have the fumbling around with a lot of extraneous things and objections that mean nothing and sidebar conferences which do nothing but break the pace of the story. What you are trying to do is tell the jury a story. This is a gripping story, which we have just heard without a break.13The plaintiff retained UCLA Economics Professor Bradford Cornell, a well known expert on mergers and acquisitions. He produced a study demonstrating that the damages to Maxus exceeded $200 million. We supported his testimony with graphics like the accompanying image, which highlighted the disparity between the actual and predicted price of Natomas stock.14 Conclusion The ETSI video had an overwhelming impact first upon the defendants, six of whom settled for in excess of $275 million, and ultimately upon the jury who returned a verdict of $345 million against the remaining defendants. After the judge trebled this amount, the case was settled for $350 million on appeal. The Maxus graphics also led to a favorable result. All told, Boesky and Kidder settled with the plaintiff Maxus Corp. for over $200 million, an amount significantly higher than their earlier settlement positions. Although the Maxus jury never had the opportunity to indirectly comment on the graphics by deliberating, it was clear that they were smitten with what they saw. After the trial, every member of the jury asked to have their picture taken with the Maxus graphics on the big screen in the courtroom. 
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