Professor William “Bill” Bailey has devoted nearly forty years to trial law. During his career as both attorney and professor, Bailey has made several adjustments to his trial practice to accommodate the cultural changes of our age. Competent attorneys, he believes, must take into account the way their jurors will seek and retain information. In the era of the smartphone and social media, attorneys must give more attention to the visual elements of a case.
Bailey’s Trial Guides catalog expands upon this premise. His popular first book, Show The Story (2011), explores the power of visual storytelling in trial settings. His newest title, Show The Brief (2023), applies these lessons to brief writing and written communication, and has been widely lauded as a much-needed update to legal communication:
Recent reviews for Show the Brief:
"[Bailey] has written an exceedingly useful manual on how to use visuals like police reports, diagrams, documents, or photographs. His ideas are likely to change the way lawyers communicate and make them vastly better advocates."—Elizabeth Loftus, PhD, past resident of the Association for Psychological Science and Distinguished Professor at the University of California, Irvine
"Bill Bailey has done more than any other lawyer I know to help you win your motions. The tips in this book will increase your victories on motion hearing day. Highly recommend this book!"
— Randy Kinnard, member of the Inner Circle of Advocates and 2020 recipient of the Pursuit of Justice Awards by the American Bar Association
An Interview with Bill Bailey
Trial Guides’ Communications and Marketing Manager, Izarra Varela Moore, recently had an opportunity to talk with Bill about his recent book, his history in the profession, and his predictions for the future of the industry.
IVM: I understand that you started off in criminal defense work. What brought you to personal injury law?
BB: I got involved in police brutality, prison reform, and the rights of the mentally disabled in law school. This led to working as a public defender, where I was surrounded by mission-driven rabble rousers, like me, who wanted to change the system—but I figured out after four years that I was not meant to be a career criminal defense lawyer. Going to court every day was an intense education. While correcting the racial inequities of the justice system continued to matter, victim advocacy became increasingly more important. I saw how the odds were stacked against the average citizen, and I became intent on leveling the playing field through personal injury law.
IVM: What are some of the changes you’ve witnessed after so many years of trial work?
BB: Our profession is completely different now. When I started out, it was no big deal to take a case to trial. These days, many judges see trials as wasteful, particularly in our overworked state trial courts. They think of all the other work they need to be doing. Slowly but surely, through a series of rule changes and pressures to settle, I have seen the trial focus that I knew as a young lawyer eliminated. Many barriers have been put up to try and stop cases from getting that far. And, of course, Daubert launched all these motions on experts. Summary judgments are way up too.
IVM: I understand you’re not a fan of mediations. Why is that?
BB: I have nothing against settlement. It is often the best thing for the client. But mediations are designed to put the squeeze on the plaintiff, who has never been through one before. It is not a fair fight. The insurance industry is a well-oiled machine that has its every move carefully scripted. While the plaintiff has everyone with authority in the room, the insurer never sends the actual decision-makers to the mediation. I've had some knock-down, drag-out sessions with insurers over this.
IVM: Your first book, Show the Story, came out in 2011, in the dawn of social media; today it almost seems prophetic. What first brought the issue of jurors’ attention spans to your attention?
BB: I have always been fascinated with the psychology of human behavior and the impact of electronic media. My college psychology courses gave me a basic framework, but serving as a juror myself was a radicalizing experience. It taught me to evaluate the whole trial process from the juror’s perspective. I found the pace of a traditional trial tedious.
Teaching trial advocacy in law school took me even deeper. A number of trial judges were my clinical faculty colleagues. They shared how hard it was for jurors to stay focused in trial due to ever shorter attention spans. Multiple research studies since have shown how smartphones have changed how we engage with one another.
IVM: In simple terms, how have juries changed since the invention of the smartphone?
BB: Attention spans are much, much shorter. People can tune out within seconds if they are not engaged. The message is clear for trial lawyers: we must change our techniques to accommodate the new habits of our jurors. A judge can give all the admonishments they want to jurors not to look up things on their phones, but this is like trying to command the tide to go out. Jurors are not going to stop looking things up on their smartphones. Even the erudite legal polymath, Judge Richard Posner, has admitted to looking things up on WebMD! People don’t like to be force fed information. They always want to find out for themselves.
IVM: Does law school prepare attorneys for modern-day trials?
BB: No, not at all! The traditional lecture style is practically unchanged from decades ago; the typical law school lecture is often a case study in what not to do. They’re tedious, text-heavy, and almost impossible to follow. Rather than getting to the point, or using images to compress the information, professors tend to get lost in the weeds of granular obscurity. This turns intelligent students into lawyers who can't communicate with juries.
If you sit in on lectures at any law school, you will see students on social media, playing video games, or online shopping. I always have regarded my students in the same way as I do my jurors; if I do not make my classes relevant, interesting, and focused, they will have no reason to pay attention. I’ve devoted my teaching career to providing an alternative forum, looking at the world as it really is, and trying to put effective persuasion tools in their hands. This is based on all my years in the trenches and everything I continue to learn about the art of persuasion and advocacy.
IVM: So, here’s the million-dollar question: what do trial lawyers need to do to accommodate our shortened attention spans?
BB: The short answer is: Visual advocacy. Telling stories with pictures.
By all indicators, smartphones and social media are here to stay—and all of us receive information differently now. Lawyers need to adopt an internet-minded approach with their juries. All the popular media, from TikTok to the New York Times, tell stories with pictures. We must constantly challenge ourselves to make things interesting for our audience, whether it be a judge or a jury.
Research studies have shown that judges use the same gut instincts as everyone in ruling on cases. Like us, they hate to be bored. For years, judges have complained to me about how they hate reading the briefs most lawyers write, which take too long to say too little. They make the same comments about the lawyers trying cases in their courtrooms.
IVM: Is there a specific type of visual advocacy that you recommend?
BB: I’m a huge fan of the information graphic, which journalists have been using effectively for decades. It compresses volumes of information into compact, interesting, and easily understood visuals. I make a point of looking at the Sunday New York Times every week to see what they are using to illustrate feature news stories. Invariably, I find ideas that can be adapted to legal purposes, as news and case stories have a very similar dynamic.
For the last 30 years, my illustrator, Duane Hoffmann, has been to me what a service dog is to a person who has lost their sight. I can visualize case-related ideas in my head, but my own actual art skills peaked when I was five and I don’t use Adobe Illustrator. So I serve as the art director, feeding critical case-related ideas to Duane, who turns them into information graphics. It usually takes several drafts to get there, but the final result is like magic!
IVM: Can you say more about the process of “lawyer as art director”?
BB: Let me give you a case example that will illustrate this. I once had a wrongful death case involving a construction worker who was hit on the back of the head by a whipping concrete pump hose. I spent a great deal of time with my liability expert, who patiently taught me the rules of the road in this industry. The focus was on the responsibilities of the pump operator.
Once I understood this well enough to make it simple, I reduced the process to the core elements, conceptualizing what would be best for the lead information graphic in the case. Then I did the handoff to my illustrator, giving him a tutorial on what I was looking for, drawing simple stick figures, and he took it from there. In the end, his single-panel illustration compressed everything of importance my expert had said, in a format that anyone could understand:
This is the “lawyer-as-art-director” idea I introduce in Show the Brief. The lawyer extracts the key visual elements from the information gathered in the pretrial process and tells the illustrator what needs to be done.
IVM: Does the written word work for everyone?
BB: Definitely not! All the research confirms that we are predominantly a visual species. The research done of reader behavior in the 1990’s by the New York Times showed just how much this drives our understanding. Taking a cue from USA Today’s heavy use of graphics starting in the 1980s, the Times found that even their highly educated readers always looked at the pictures first before deciding to read the accompanying story.
I love the story of how an information graphic launched the Gates Foundation. In early January, 1997, Bill Gates read a New York Times article by Nicholas Kristof titled “Death By Water.” It described how many people around the world die every year because of water borne pathogens. This was a “satori” moment for Gates, who turned his ambitions from wiring the world to improving global health practices. When Kristof heard that his article had made such an impact, he was feeling pretty good. But Gates revealed that, just like all the other Times readers, it was the visual that drew his attention, not the words. And this visual was not even that sophisticated. [Editor’s Note: The original graphic can be found here.]
IVM: Some attorneys still view graphics as unprofessional, or even gauche. How would you respond to that?
BB: I find it absolutely stupefying. Here we are, well into the 21st century, in the midst of an ongoing information revolution—and yet the 19th century model that Christopher Columbus Langdell came up with at Harvard is still how most lawyers communicate. The telephone wasn’t even invented then! I am dumbfounded when I see smart colleagues clinging to this long-outdated model of communicating. It is a smothering security blanket of conformity that does not fit our image as creative innovators of the legal profession.
IVM: What are some industry-wide changes you’d like to see over the next few years?
BB: The plaintiffs’ bar needs to rethink their approach to written and oral communication. This is part of the reason why I left an active, successful trial practice after 40 years; I was not burned out, but realized that unless I made this shift, I never would have the time and space to fully develop my ideas about better ways to advocate for our clients.
Talk to any busy trial judge and you will learn just how unhappy they are with the traditional ways of legal writing. Practicing what I preach, Show the Brief compresses years of thought and research on how human beings learn, shifting the primary focus from persuading juries to judges (though the same principles apply to both). It is also filled with examples of how visual legal writing is done. Some of us have been doing this for years and know just how well visual advocacy works.
About Bill Bailey
Bill Bailey started out as a public defender before switching to plaintiff representation. He has been named Washington State Association for Justice Trial Lawyer of the Year, and later became the first professor of practice at the University of Washington School of Law, where he focuses on trial advocacy and real-world skill building for aspiring lawyers. In 2018, the student body named him Small Sections Professor of the Year. Learn more here.
About Show the Brief
In Show the Brief: Visual Writing Strategies and Techniques, trial lawyer and law professor William S. Bailey teaches you how to create legal briefs that powerfully demonstrate the facts of your case in a more effective, and more persuasive, manner. Using a step-by-step approach, Bailey provides valuable background information from psychology, neuroscience communication, and the graphic arts. Learn how to become a more effective advocate and teacher—all through learning how to use visuals in your briefs and pleadings to make them more effective.