What a picture is worth

Lawyers are so used to dealing all day with text that they become somewhat immune to its shortcomings, which include that it is very often not the most effective way to communicate something. For example, in a recent filing in the Southern District of West Virginia in a medical-device MDL, the defendants sought summary judgment because they, as parent corporations, could not be liable for the conduct of their subsidiaries. After describing in the usual way—with words—the corporate relationship of the various parties, the defendants inserted the little diagram shown in the first tab below.

The diagram is easier to grasp than an all-text description for nine out of ten readers, particularly those whose interest in the corporate structure of the defendants is extremely limited to start with and extends only to the bare minimum necessary to issue a decision.

The diagram is far from ideal: it is cobbled together from keyboard characters, isn’t aligned well, and has a “typo” in the form of an extraneous down-arrow. But it is far better than nothing, and the brief gains persuasive power by its presence.

When you work on a brief, think to yourself “what elements are there in the facts of this case or in this argument that could be persuasive if presented visually?” Think beyond the facts necessary to the decision; think, for example, about the demonstrative exhibits you will use at trial and whether they may be persuasive in your briefs (hint: yes). If you are defending a drug that fights bone cancer, and explaining why any sane doctor would prescribe it notwithstanding adverse events, consider putting an image of bone cancer in your recitation of facts, as shown in the second tab below.

Your brief, and your point, won’t be forgotten.

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