Think Visual: Using Graphics In Business Litigation

September 11th, 2008
Chart Explaining The Parole Evidence Rule

Chart Explaining The Parole Evidence Rule

Most lawyers don’t think about graphics until they’re preparing for mediation, arbitration or trial. But many pre-trial motions and issues involve ideas that are hard to explain with text but easy to show graphically: organization charts, process flow charts, and time lines (especially for statute of limitations motions). Even complex legal analysis can in some cases be reduced to an easy-to-use decision tree. Still, most judges and lawyers cling to the outdated notion that only juries benefit from graphics.

Here’s an example of how I used graphics in the law-and-motion department. All lawyers remember the phrase “Parole Evidence Rule” from law school. But like the “Rule Against Perpetuities” (which I forgot shortly after taking the bar exam) or the “Battle of the Forms” from the Uniform Commercial Code, you could read cases applying the Parole Evidence Rule all day long without attaining a state of clarity.

The seemingly simple rule (“You cannot use extrinsic evidence to change the meaning of a contract”) has so many exceptions that it sometimes seems turned on its head (closer to “You can always use extrinsic evidence to explain or interpret the meaning of a contract”).

While noodling over the meaning of the rule as applied to an “exclusive negotiations” contract between a developer and a public entity, a colleague and I grabbed a butcher-paper flip chart and Magic Marker and started scribbling boxes, arrows and case names like mad. After balling up and discarding several sheets, we finally distilled the holdings of nearly a dozen cases into a single, unified chart. Eureka!

We sent the chart off to a graphic artist who “prettified” it, adding cool colors, subtle shading and shadow effects and selecting an easy-to-read type face. This is the chart we all wish we’d had in law school.  (Students, see below on how you can get yours.)

Using text narrative, you can state the rule and list the exceptions. But you’d need dozens of pages to describe all the possible combinations that could apply to a given case. As the saying goes, a picture’s worth a thousand words. We attached the finished product to our brief. I can’t say it made the difference, but the judge adopted our view of the law over the opponent’s.

What does the future hold? Trial graphics have gone beyond static images on a board to video animation projected on a screen. In patent cases, lawyers routinely prepare animations to explain and simplify technology. It won’t be long before video makes its way into routine motion practice.

With the spread of electronic filing, some courts (such as the Ninth Circuit U.S. Court of Appeals) are experimenting with e-briefs that allow lawyers to hyperlink to cases and record pages. Though I haven’t heard of it, no doubt some trial courts already accepted video deposition clips into a motion record.

Imagine this in your brief:  Instead of the ho-hum response “I followed routine company policy,” the court can watch the deponent mopping his sweaty brow, whispering into his lawyer’s ear, the lawyer whispering back, and the nervous witness stuttering as he utters this testimony. Now that’s a picture worth a million words!

The thumbnail image with this article is a low-resolution version of my Parole Evidence Rule chart (a.k.a., The Parole Evidence Rule Made Easy). I’m happy to send law students, lawyers and others a free full-size Adobe Acrobat PDF file of the chart.  Use it to get ideas for your own case. 

For details on this free offer, click here to visit the “Think Visual” page.

Credits: Co-author of the chart: San Francisco Deputy City Attorney Warren Metlitzky (a guy who can’t do anything without a chart); Graphic Artist: David Rosenthal of LegalVision (a guy who can make a chart for anything).

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