Elizabeth G. Porter
Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises continue to evoke Blackstone and Kent; most legal casebooks are facsimiles of Langdell’s; and legal journals resemble the Harvard Law Review circa 1887. None of these influential forms of disseminating the law has embraced — or even nodded to — modern, image-saturated communication norms. Litigants, scholars and courts have been rebooting the same formalist templates for over a century — templates that were formed before widespread use of the camera, never mind the computer. Outside of trial, where image-driven advocacy has a long history, legal practice begins and ends with text.
But over the past five years, for the first time — unrecognized by scholars or courts — creative trial lawyers, receptive judges and the iPhone camera are breaching these conservative bulwarks. Images are moving out of the evidentiary margins, driving argument in litigation documents from pleadings to judicial opinions. Unregulated, visual argument threatens fundamental premises of legal discourse and decision-making. Yet in comparison with law’s rich and detailed traditions for interpreting ambiguous text, lawyers and judges have few tools beyond common sense with which to ameliorate the interpretive risks of visual persuasion. “I know it when I see it” is not merely an aphorism; it is the reigning interpretive canon for images in law.
This Article, the first comprehensive scholarly treatment of images in written legal argument, establishes and critiques the nascent phenomenon of multimedia written advocacy as a vital, if potentially problematic, element of a lawyer’s toolbox. It argues that despite substantial risks, the profession should cautiously embrace the communicative power of multimedia writing. It concludes by offering concrete suggestions for the fair regulation of multimedia persuasion, including two foundational canons of visual interpretation — the basis for developing new traditions for integrating images into written advocacy.