Don’t believe people who tell you that words are a lawyer’s only tool. Like Captain and Tennille, words and pictures belong together. If you’re not using visuals, it’s time to start.
To understand why lawyers don’t use visuals effectively, you need to understand the elements of legal persuasion. Legal persuasion has three parts, which I call a Legal Persuasion Pyramid (LPP):
Effective legal persuasion involves all three.
A good story (1) emotionally transports the audience by moving them, (2) includes characters facing problems and trying to overcome them, and (3) communicates some message or moral.
By using visuals, you help your audience understand the crucial evidence in a way that reinforces your message or moral.
A Word Paints a Thousand Pictures … Badly
Let’s face it, lawyers have been trained not to do visuals. Here is one example: As I write this, I have an 857-page criminal procedure book from law school sitting in my lap.
Here is the sole table in the book:
There are 18 pictures in the book, and all of them look like this:
We can do much better than occasional tables and pictures of text.
You’ve Been Lapped by Abraham Lincoln, Son
Even though graphics have been common for well over a century, lawyers routinely fail to use visuals even when visuals are essential to understanding the case.
For the last few years I have attended monthly hearings for a statewide mass tort docket managed by a single trial judge. During that time, I have watched more than 50 oral arguments on summary judgment motions. Many of these motions turned on this causation question: can the plaintiff make a showing that they were present at the same location at the same time as the harmful substance?
The outcome of these motions depends on the location, size, and layout of the job site, including what kind of work the plaintiff did there. It would obviously help to see what the place looked like. But I have never seen a lawyer arguing these motions ever provide a picture, a map, or a drawing of the job site during oral argument.
So Much for My Happy Ending
I learned about the importance of visuals the best way: failure. It was 2009, and co-counsel and I were sitting through plaintiff counsel’s closing arguments in a bench trial involving a prisoner alleging that he was denied due process before his prison-gang validation. Gang validation—evidence from the prison that an inmate is a member of a particular gang—in California is a big deal. It often has the effect of making a term-to-life sentence a life-without-the-possibility-of-parole sentence if the inmate is gang-validated.
The inmate had a slew of pro bono lawyers from a top-25 law firm representing him, and they argued that he never had an opportunity to meet with the gang investigators before they validated him.
Here was our problem: no interview was documented on any prison form, as the regulations required. But we had a mugshot the gang investigators took of the inmate before they validated him. We argued that the mugshot was evidence that the gang investigators interviewed the inmate, but that the interview was never documented.
During plaintiff counsel’s closing argument, the judge questioned counsel about something that no one touched upon at trial: could the mugshot have been taken when the inmate was in his cell? In the judge’s mind, this would explain how there could be a mugshot but no interview, because nobody would interview an inmate in the inmate’s cell.
We had no opportunity to respond effectively. This was the result:
We probably would have lost the case anyway. But we didn’t have to lose the mugshot argument. If nothing else, we could have presented some photos of the prison cell and the hallway that would have shown that the mugshot could not have been taken in the inmate’s cell.
I hope I learned my lesson.
The Portrait of Persuasion
Most of us are surrounded by one-trick lawyers who rely solely on words to win. So, start using the power of pictures to persuade. At very least, you’ll find your case more compelling.
Featured image: “Make Your Own Meme: Jackie Chiles Seinfeld.” I replaced the face in the image with Michael Phelp’s death stare and cropped the image among the edges.