When a Picture is Worth More Than a Thousand Words
by John Browning
Tue, Sep 11, 2012, 08:25 AM
It’s often said that actions speak louder than words.Pictures, however, sometimes speak loudest of all.This is especially true in the legal system, where a poignant “day in the life” video of an accident victim who’s been paralyzed by someone else’s negligence can convey more in a few minutes than days worth of clinical expert testimony.Sometimes the pictures themselves can land someone in trouble—even the judge.The Ohio Supreme Court recently sanctioned Jeannette Moll, a candidate for the Ohio Court of Appeals, for wearing judicial robes in her campaign flyers.You guessed it—Moll, a sole practitioner, is not a judge and has never served as a judge (she did serve as a state court magistrate from 1997 to 2007).The Court held that she violated the state’s code of judicial conduct because of the misleading ads.And in Brooklyn, New York, Supreme Court Justice Arthur Schack recently recused himself from presiding over a retrial of a personal injury case that had been tried by attorney John McDonough.McDonough’s firm had alleged that the judge couldn’t be fair and impartial to him.Its evidence?It seems Justice Schack had allegedly posted copies of a photo of McDonough in his courtroom with the word “Wanted” printed on them.He also allegedly drew a bullseye on another photo of McDonough.Despite this, the judge maintains that he is fair, and has “no bias, animus or hostility against Mr. McDonough or his firm.”I think the pictures said a thousand words, and then some.
Sometimes, pictures may simply be the best way for an advocate to express his client’s position concisely and clearly.In Hillwood Investment Properties III, Ltd. V. Radical Mavericks Management, Mark Cuban was accused by a minority owner of the Dallas Mavericks of mismanagement of the NBA team.In his 3-page summary judgment brief, Cuban’s lawyer Tom Melsheimer featured a photo that demonstrated loudly and clearly just how “mismanaged” the team was: it showed the victorious Mavericks hoisting the NBA Championship trophy on June 12, 2011.Enough said.
Recently, a lawyer who opposed the proposed settlement of the Justice Department’s antitrust lawsuit against 3 publishers of e-books (the publishers were accused of a price-fixing conspiracy) resorted to unconventional means in his quest to persuade the court.Bob Kohn, a former music executive and chief executive of Royalty Share, was very critical of the proposed settlement and wanted to share the reasons why in an amicus curiae (friend of the court) brief.However, New York federal judge Denise Cole rejected his 25-page brief, and limited him to only 5 pages.Embracing “the idea of using pictures which, as we know, paint a thousand words,” Kohn filed 5 pages all right—but it was in cartoon form (Kohn calls it a “graphic novelette”).In the comic strip panels (illustrated by a friend of Kohn’s daughter), Kohn is depicted discussing the case with his daughter Katie and presenting the reasons why the settlement before the court harms the public.At the end, Katie tells her father “I’m not a lawyer, but that sounds like a major screw-up.”When the animated Kohn tells his daughter she should’ve been a lawyer, she demurs, saying “not for me.I’m a novelist, and it’s impossible to tell a complex story in only five pages.”Kohn’s “comic brief” made national news, with Publishers Weekly even saying “his rendering is brilliant—not only is it a not so subtle jab at the court for limiting such a complicated case to five page briefs, as a comic strip, the brief will be widely digestible for the general public who may not have the gumption to plow through a typical legal brief.”Alas, it did not work; the judge approved the price-fixing settlement anyway.
Judges, too, have been known to throw in a few pictures with their written judicial opinions, in order to illustrate a particularly salient point or to make the opinion more accessible.One of the judges best known for employing photos in his opinions is Seventh Circuit Justice Richard Posner.In a 2007 case dealing with the slaughter of horses for human consumption, Posner underscored the use of horsemeat by zoos by including a photo of Kwanzaa, a lion at a Waco zoo enjoying a birthday cake made from 10 pounds of horsemeat topped with whipped cream and a carrot.In a January 2012 opinion regarding federal prisoners suing for the right to express their Rastafarian religious beliefs by wearing dreadlocks, Justice Posner incorporated a photo of reggae icon Bob Marley to show how “dreadlocks can attain a formidable length and density.”And in another case, this time involving whether the Fair Labor Standards Act required steel workers to be compensated for time spent changing into protective clothing, Posner underscored what the “donning and dotting” entailed by including a photo of a man in full gear.The judge described the clothing in detail, and then featured the photo for good measure because “a picture is worth a thousand words.”
Of course, sometimes Justice Posner has used photos to express his displeasure with the lawyers.Chastising a plaintiff’s lawyer whom he felt had blatantly ignored unfavorable case precedents in his brief, Justice Posner took him to task both verbally and by including a photo of an ostrich sticking its head in the sand.Ouch!