An ostrich (and a lawyer), both with their heads in the sand. Bob Marley. A man wearing full safety clothing. A lion eating a giant meat-cake.
What do these four images have in common? If you answered: “they’re all the subjects of photos that Seventh Circuit Judge Richard Posner has gratuitously included in opinions,” you’d be right.
In a November 2011 opinion, Judge Posner—using both words and pictures—harshly criticized the lawyer for one of the parties for failing to cite controlling precedent in both his opening and reply brief:
In a January 2012 opinion addressing whether prison officials may allow Rastafarians, but not members of other religions, to wear their hair in dreadlocks, Judge Posner used a photo of Bob Marley to underscore his statement that “dreadlocks can attain a formidable length and density”:
Bob Marley image © David Corio
In an opinion released earlier this week, the primary issue was whether the Fair Labor Standards Act requires that the plaintiff steelworkers be compensated for the time spent changing into protective clothing. After describing the clothing in detail (“…flame-retardant pants and jacket, work gloves, metatarsal boots [work boots containing steel or other strong material to protect the toes and instep) a hard hat, safety glasses, ear plugs, and a 'snood' [a hood that covers the top of the head, the chin and the neck"]), Judge Posner, asserting that “a picture is worth a thousand words,” inserted into the opinion “a photograph of a man modeling the clothes”:
I suggest in Pixel Persuasion: Legal Writing for the 21st Century that, under certain circumstances, including a picture in a brief can make the brief more persuasive. Similarly, when appropriately used, photographs can help make opinions more accessible, both to lawyers and to the general public.
Unfortunately, Judge Posner’s use of pictures in opinions isn’t particularly effective, because it’s gratuitous. In the November 2011 opinion, Judge Posner included the picture merely to illustrate a worn-out cliché. There was no rhetorical reason to include a photo of Bob Marley with dreadlocks flying in the January 2012 opinion because the fact that “dreadlocks can attain a formidable length and density” was not disputed. Similarly, because the appearance of the clothing whose donning and doffing were at issue in this week’s opinion wasn’t in dispute, there was no rhetorical reason to include a photo of a model wearing it, especially after describing it in detail.
As Reuters reported, in 2007, Judge Posner “cut and pasted a photo of Kwanzaa, a lion at a Texas zoo, celebrating its birthday with a cake made from 10 pounds of horsemeat topped with whipped cream and a carrot. That image was included [in] a lawsuit over the slaughtering of horses for human consumption, and was meant to underscore the fact that zoos feed their animals a considerable amount of horsemeat.” In that case, as in the three more recent ones, the picture was mere surplussage.
Using Persuasive Pictures Properly
By contrast to judge Posner’s hamhanded efforts, the lawyer for the Dallas Mavericks effectively used an image in a summary judgment opposition brief. In Hillwood Investment Properties, III, Ltd. v. Radical Mavericks Management, a 5% owner of the Dallas Mavericks claimed that the team had been mismanaged, and sought the appointment of a receiver. The Mavericks’ three-page summary judgment brief prominently featured a photo to underscore the team’s argument that the evidence demonstrates that, as a matter of law, the team had not been mismanaged:
Don’t make the same mistake Judge Posner keeps making: if you include a photo in a brief, make sure that it packs a real rhetorical punch, or that (like a signature sample in a fraud action) it’s crucial to the case.