Saturday, May 25, 2019
“As bad as we are at remembering names . . . we have really exceptional visual and spatial memories.”― Joshua Foer
I've been hanging around with two (quite) different but excellent crowds lately: Judges and legal-tech folks. Of course, I talk about legal writing with both (because what else can I talk about?). And a fascinating question keeps popping up:
Why don't lawyers use more visuals in their legal writing?
We all know that people love consuming information graphically. Studies show that the average person today spends about half their waking hours looking at some sort of media. So why haven't lawyers caught up?
Many judges want more visuals. The judges I talked to say they would love to see lawyers submit graphs, tables, and other handy visuals that break down the facts or arguments in the brief. One judge said: “For Pete's sake, give me tables if there's data!”
When lawyers smartly use visuals, judges say it helps them understand the points in a way writing can't. Judge Posner is outspoken on this, repeatedly calling out judges and lawyers alike for ignoring the communicative power of visuals.
Creating visuals is easier than ever with new tools. Back in the day, perhaps lawyers could justify avoiding this topic because making graphics was expensive and cumbersome. Who is going to spend six hours creating a chart for a motion that took four hours to write?
But there is no excuse anymore. Because making spiffy flow charts, infographics, timelines, tables, and even simulated pictures is now as easy as a few clicks. Tons of tools have flooded the market--with many aimed straight at lawyers. For example, check out TrialLine, a timeline maker:
There are tools to make every sort of graphic you can imagine. Another of my favorites is Piktochart. You can bust out a graphic or modified photo in seconds. I made the below in about a minute. It went along with a summary judgment motion in a car accident case. One important fact was how many inches there were between two points on the plaintiff's car. Another was that a stoplight had been knocked down during the accident. I have no doubt the judge would notice both:
Heck, Microsoft Word and PowerPoint have enough under the hood to do plenty. Here's a simple Word flowchart to help a judge understand how different actors fit together in a brief:
Here's a chart showing a judge how the key authority fits together to support a rule:
Consider that a simple chart, graph, or table can drive home your key points in a way writing can't. We spend hours crafting prose that highlights our key facts and arguments so that our readers notice them. Imagine what a visual or two can do?
Many folks suggest that visuals can be used for three goals in legal writing: to organize, to interpret, and to highlight.
- Organize information. Use a table or chart to explain how different pieces of information (say, companies or cases) fit together.
- Interpret information. Use a graphic to explain how the reader should view some information through a lens.
- Highlight information in a new way. Use a graphic to represent the same information you relate in your brief, but do it in a way that's more memorable or digestible.
Here are some specific triggers when you might consider using a graphic:
- You have data—graphs nearly always make data easier to swallow than writing about the results.
- You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it).
- You have a complex process to discuss—like an agency process, or a factual process that a party carried out.
- To show how a statute, regulation, or any other rule operates in steps.
- Any time you can use a chart to plot out a decision tree for your reader with the options laid out.
- Whenever you can come up with a visual that highlights key evidence or authority.
Once you are open to visuals, the ideas will come flowing in. You can use them in all sorts of ways.
To make it even easier to jump on this train, I have some examples of visuals you might consider including in your next brief or motion. I then offer a few final tips for doing visuals right.
Timelines may be the most helpful visual device for your readers. Nearly every case has a litany of important events, and the chronology is often muddled. Timelines give your reader a unique view of how developments unfolded—a view that, in some detailed cases, may be impossible to do well in prose.
Take a look at this example from a legal tech company:
Consider using a table whenever you have information to compare or contrast, side by side. Examples include juxtaposing evidence, juxtaposing allegations, juxtaposing cases, juxtaposing arguments—or any other information that you can compare for effect. Tables are also great for presenting large amounts of data and sorting it into categories.
Here’s an example of tables done well. The lawyer used a table right in his brief to show the contradictions between what the plaintiff alleged in his complaint and what he said in a declaration:
Here’s an example that uses a table to show, this time, an imbalance between policy interests (credit to professors Steve Johansen and Ruth Anne Robbins and their fabulous article):
Textual call-outs are powerful emphasis tools that will force your reader to remember something. Simply create a snippet of the most powerful phrases or sentences in your document, and set it off on the page. You can also use them instead of bullets.
Take this example, from Professors Johansen and Robbins again:
Charts and Graphs
Charts and graphs are useful whenver you have data or information to compare, contrast, or plot out over time or space.
Maps are great for making any sort of spatial or location points. You can annotate a map to show where a company’s offices are or where important events unfolded:
There are many reasons why you might want to include an image in your brief. Good IP attorneys, for example, often use pictures to make points about how products or logos compare:
Or take this image used to press a point about the extent of damage a client suffered:
You can also create images to reconstruct important events. Like this one from SmartDraw:
Cast of characters
When your case has a cast of characters, and it will be tricky for your reader to keep track of who is who, consider creating a legend at the outset of your brief (or as an appendix).
Include their name, their role, and any other helpful information.
Susie Park: CEO of GloboTech
Jim Hoffman: CFO of Harrington, a subsidiary of GloboTech
If you have a list of points, reasons, or related facts, consider using bullets to summarize them. Bullets are a powerful emphasizing tool, making it easy for your reader to take stock of the size of the list.
Judge Wood uses this device in one of her opinions, using bullets to make her readers notice the many reasons supporting her argument:
“The video recording of the police interrogation of Dassey, however, tells another story — one that is diametrically opposed to the state's tidy and selective summary. Among the many red flags are the following:
- Dassey's answers to questions frequently changed at the detectives' prodding.
- The officers laid a trail of crumbs (indeed, large sign-posts) to the confession they sought.
- Whenever Dassey went off-course, the investigators would shepherd him back in the desired direction — at times with the use of fatherly assurances and gestures, and frequently by questioning his honesty.
- On both February 27 and the detectives misleadingly conveyed to Dassey, whose ability to think abstractly was minimal, that his honesty was the only thing that will set [him] free.
- Through subsequent questioning it became clear that honesty meant what the investigators wanted to hear.”
Flowcharts and Infographics
Flowcharts are amazing at showing how processes work. Use these to show steps or any other procedure being carried out:
5 Final Tips to Make Visuals Work
1. Always explain the visual beforehand (like a block quote). And do so thoughtfully. Let your reader skip the visual if they like. You should never force your reader to use a visual, lest they resent you for it.
2. Consider whether it will be less risky, and easier, to include a visual as an attachment or appendix rather than inserting it into your brief. Usually, if it’s important, it can be inserted into your brief and formatted smoothly. But if you have any sense that your reader will balk at the visual, put it in the back.
3. Use colors when you can—especially to show contrasts, similarities, and groupings.
4. Label everything thoughtfully and concisely. Use legends that are as simple and stylistic as your prose.
5. Keep it simple: Complex visuals can become harder to decipher than writing. If you are getting to that point, cut it. Otherwise your visual will become a distraction.
6. Above all, as federal judges Jennifer Dorsey and Andrew Gordon pointed out in reviewing this article: Visuals are no replacement for good writing. Visuals can be a helpful supplement, but you can easily overdo it and shirk your writing. So lead with good writing and use thoughtful visuals if helpful.
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.