Category Archives: Legal Research Instruction

Artificial intelligence and legal research instruction

Jamie J. Baker’s 2017 A Legal Research Odyssey: Artificial Intelligence as Disruptor discusses the current state of artificial intelligence as it applies to law. The article provides a background in current technological capabilities, shows how these capabilities are being used in various professions, including finance and medicine, and provides an overview of current natural language processing capabilities to discuss how the latest technological advances will realistically be applied to legal research. The article ultimately argues that law librarians must still infuse law students with sound legal research process and understanding so that they have the ability to confidently rely on algorithms in the face of various ethical duties. Here’s the abstract:

Cognitive computing is revolutionizing finance through the ability to combine structured and unstructured data and provide precise market analysis. It is also revolutionizing medicine by providing well-informed options for diagnoses. Analogously, ROSS, a progeny of IBM’s Watson, is set to revolutionize the legal field by bringing cognitive computing to legal research. While ROSS is currently being touted as possessing the requisite sophistication to perform effortless legal research, there is a real danger in a technology like ROSS causing premature disruption. As in medicine and finance, cognitive computing has the power to make legal research more efficient. But the technology is not ready to replace the need for law students to learn sound legal research process and strategy. When done properly, legal research is a highly creative skill that requires a deep level of analysis. Law librarians must infuse law students with an understanding of legal research process, as well as instruct on the practical aspects of using artificial intelligence responsibly in the face of algorithmic transparency, the duty of technology competence, malpractice pitfalls, and the unauthorized practice of law.

— Joe

CRS guides for researching federal legislation

Two regularly updated research guides produced by the Congressional Research Service were updated in the last year.

Researching Current Federal Legislation and Regulations: A Guide to Resources for Congressional Staff (Feb. 6, 2017, RL33895) introduces congressional staff to selected governmental and nongovernmental sources that are useful in tracking and obtaining information on federal legislation and regulations. It includes governmental sources, such as Congress.gov, the Government Publishing Office’s Federal Digital System (FDsys), and U.S. Senate and House websites. Nongovernmental or commercial sources include resources such as HeinOnline and the Congressional Quarterly (CQ) websites.

Legislative History Research: A Guide to Resources for Congressional Staff (July 6, 2016, R41865) provides an overview of federal legislative history research, the legislative process, and where to find congressional documents. The report also summarizes some of the reasons researchers are interested in legislative history, briefly describes the actions a piece of legislation might undergo during the legislative process, and provides a list of easily accessible print and electronic resources.

See also, The Framing of the United States Constitution: A Beginner’s Guide on In Custodia Legis.

Useful. — Joe

‘Finding law:’ Out-of-date metaphors for 21st century legal research

About their very interesting essay, New Wine in Old Wineskins: Metaphor and Legal Research, 92 Notre Dame L. Rev Online 1 (2016), Amy Sloan and Colin Starger write

This essay examines a different set of metaphors currently doing damage in law. Though not as life-and-death dramatic as the War on Drugs or the struggle against patriarchy, these metaphors affect every law student and practicing lawyer. What’s more, our examination implicates broader philosophical issues that resonate well beyond specifically legal discourse. The metaphors we examine pertain to legal research—how we conceptualize the task of ‘finding law’ to make arguments and solve legal problems. The broader philosophical issues concern changes wrought by technology. When technology radically alters our material world, sometimes our conceptual world fails to adjust. To successfully evolve, we must interrogate and change our deepest metaphors. This Essay undertakes this foundational task in the brave new world of legal research.

This Essay argues that conceptualizing emerging legal technologies using inherited research metaphors is like pouring new wine in old wineskins—it simply doesn’t work. When a primary challenge of research was physically gathering hidden and expensive information, metaphors based on journey, acquisition, and excavation helped make sense of the research process. But new, technologically-driven search methods have burst those conceptual wineskins. The Internet and Big Data make information cheap and easily accessible. The old metaphors fail.

Recommended. — Joe

Beyond the traditional view of legal reasoning

Here’s the blurb for Beyond Legal Reasoning: A Critique of Pure Lawyering (Routledge 2017) by Jeffrey Lipshaw (Suffolk University Law School):

The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of ‘thinking like a lawyer’ or ‘pure lawyering’ aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the “pure lawyering” of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors.

This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.

Recommended. — Joe

Using linguistics to determine the ordinary meaning of the language of the law empirically

In the abstract for Judging Ordinary Meaning, Thomas R. Lee and Stephan C. Mouritsen write:

We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning — from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.

When we speak of ordinary meaning we are asking an empirical question — about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.

Interesting. — Joe

A trip down memory lane: a visual history of the development of Google Search Engine Results Pages

Google Search Engine Results Pages (SERPs) have changed dramatically over the past 20 years. In A visual history of Google SERPs: 1996 to 2017 (Search Engine Watch), Clark Boyd writes

The original lists of static results, comprised of what we nostalgically term ‘10 blue links’, have evolved into multi-media, cross-device, highly-personalized interfaces that can even adapt as we speak to them. There are now images, GIFs, news articles, videos, and podcasts in SERPs, all powered by algorithms that grow evermore sophisticated through machine learning.

Search Engine Watch’s infographic identifies the evolution of Google Search Engine’s results pages here. Recommended. It could be used in a teachable moment about the consequences of algorithmic change generally before moving to the great unknowing of algorithmic changes engineered by WEXIS and displayed in WEXIS search output. — Joe

 

Has West Search sacrificed comprehensiveness?

As a quick follow-up to my earlier post titled 10,000 documents: Is there a flaw in West Search? (March 20, 2017), it appears that a West reference attorney has confirmed my conclusion that Westlaw does not offer as comprehensive a searching capability as Lexis.

In reading Mary Whisner’s (Reference librarian, Gallagher Law Library, University of Washington School of Law) research paper Comparing Case Law Retrievals, Mid-1990s and Today, Appendix B records an exchange between Whisner and a West reference attorney. Here’s the pertinent parts:

11/18/2016 01:14:35PM Agent (Anna Wiles): “Those searches seem to be maxing out.”

11/18/2016 01:14:51PM Agent (Anna Wiles): “Sometimes, the algorithm will cut off before 10,000.”

11/18/2016 01:23:26PM Agent (Anna Wiles): “If you run the search in all states and all federal, it will max out because it is a broad search.”

11/18/2016 01:23:53PM Agent (Anna Wiles): “If you narrow by a jurisdiction, the results will not max out.”

But Whisner was attempting to perform a fairly comprehensive search. Note that West Search sometimes will max out at under 10,000 documents too according to the West staffer.

More evidence that in an attempt to find the Holy Grail of legal research —  the uber precise search result — West Search may have sacrificed comprehensiveness. — Joe

10,000 documents: Is there a flaw in West Search?

10,000 documents is an awful lot. Truly a low precision, high recall search. But sometimes, one starts off searching very broadly because Westlaw and Lexis Advance provide a “search within results” option to narrow down initial search output. While I do not perform many broad searches in Westlaw, I have never once seen a figure higher than 10,000 documents in my search results. I have, however, seen “10,000+” documents in equally broad Lexis Advance searches on the same topic.  Unfortunately 10,000 documents appears to be a search results limit in Westlaw.

If an initial search pulls up 10,000 documents in Westlaw, there is no reason to believe all Westlaw documents identified by one’s search are really all the potentially relevant documents in the Westlaw database. Searching within the initial 10,000 documents search results would be, therefore, based on a seriously flawed subset of the Westlaw database, one defined by West Search, not one’s search logic. This is not the case in Lexis Advance where a broad search may yield 10,000+ documents for searching within initial results. If this is indeed a flaw in West Search’s output, one must conclude that Lexis Advance offers more comprehensive searching of its database than Westlaw. — Joe

Is Wikipedia a reliable legal authority now?

Keith Lee identifies recent court opinions that cite (or reject) Wikipedia as an authority on Associate’s Mind. He writes:

Every Circuit has judicial opinions that cite Wikipedia as a reliable source for general knowledge. Who Ludacris is. Explaining Confidence Intervals. But some courts within the same Circuit will be dismissive of Wikipedia as a source of general information. There is no definitive answer. Judges seem to make determinations about Wikipedia’s reliability on a case-by-case basis. If you want to cite Wikipedia in a brief and not have a judge be dismissive of it, it’s probably worth your time running a quick search to see where the judge stands on the topic.

Hat tip to PinHawk’s Librarian News Digest on the PinHawk Blog. — Joe

The big three legal research providers in the small law market

Lexis, Westlaw, and Fastcase are in a virtual tie in the small law market according to a recent survey conducted by the law practice management firm Clio. The results of the survey revealed the following small law market shares:

  1. Westlaw, 20.58 percent
  2. Fastcase, 20.35 percent
  3. LexisNexis, 20.21 percent

See the below pie chart and table for details.

Hat tip to Bob Ambrogi’ LawSites post. — Joe

 

How likely is algorithmic transparency?

Here’s the abstract for Opening the Black Box: In Search of Algorithmic Transparency by Rachel Pollack Ichou (University of Oxford, Oxford Internet Institute):

Given the importance of search engines for public access to knowledge and questions over their neutrality, there have been many theoretical debates about the regulation of the search market and the transparency of search algorithms. However, there is little research on how such debates have played out empirically in the policy sphere. This paper aims to map how key actors in Europe and North America have positioned themselves in regard to transparency of search engine algorithms and the underlying political and economic ideas and interests that explain these positions. It also discusses the strategies actors have used to advocate for their positions and the likely impact of their efforts for or against greater transparency on the regulation of search engines. Using a range of qualitative research methods, including analysis of textual material and elite interviews with a wide range of stakeholders, this paper concludes that while discussions around algorithmic transparency will likely appear in future policy proposals, it is highly unlikely that search engines will ever be legally required to share their algorithms due to a confluence of interests shared by Google and its competitors. It ends with recommendations for how algorithmic transparency could be enhanced through qualified transparency, consumer choice, and education.

— Joe

A psychological perspective on algorithm aversion

Berkeley J. Dietvorst, The University of Chicago Booth School of Business, Joseph P. Simmons, University of Pennsylvania, The Wharton School, and Cade Massey, University of Pennsylvania, The Wharton School, Algorithm Aversion: People Erroneously Avoid Algorithms after Seeing Them Err, Journal of Experimental Psychology: General (forthcoming).

Abstract: Research shows that evidence-based algorithms more accurately predict the future than do human forecasters. Yet, when forecasters are deciding whether to use a human forecaster or a statistical algorithm, they often choose the human forecaster. This phenomenon, which we call algorithm aversion, is costly, and it is important to understand its causes. We show that people are especially averse to algorithmic forecasters after seeing them perform, even when they see them outperform a human forecaster. This is because people more quickly lose confidence in algorithmic than human forecasters after seeing them make the same mistake. In five studies, participants either saw an algorithm make forecasts, a human make forecasts, both, or neither. They then decided whether to tie their incentives to the future predictions of the algorithm or the human. Participants who saw the algorithm perform were less confident in it, and less likely to choose it over an inferior human forecaster. This was true even among those who saw the algorithm outperform the human.

The Algorithm as a Human Artifact: Implications for Legal {Re}Search

Here’s the abstract for Susan Nevelow Mart’s very interested article The Algorithm as a Human Artifact: Implications for Legal {Re}Search (SSRN):

Abstract: When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query in a case database. When comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database. An average of forty percent of the cases were unique to one database, and only about 7% of the cases were returned in search results in all six databases. It is fair to say that each different set of engineers brought very different biases and assumptions to the creation of each search algorithm. One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Legal research has always been an endeavor that required redundancy in searching; one resource does not usually provide a full answer, just as one search will not provide every necessary result. The study clearly demonstrates that the need for redundancy in searches and resources has not faded with the rise of the algorithm. From the law professor seeking to set up a corpus of cases to study, the trial lawyer seeking that one elusive case, the legal research professor showing students the limitations of algorithms, researchers who want full results will need to mine multiple resources with multiple searches. And more accountability about the nature of the algorithms being deployed would allow all researchers to craft searches that would be optimally successful.

Recommended. — Joe

Lexis Advance Show Me How video series

Lexis has 50 short 1-3 minute how-to video tips for key Lexis Advance® features on its Show Me How YouTube channel. The videos cover everything from document and navigation tools to segments to terms and connectors use in Lexis Advance. The YouTube channel page text notes that some of the video demonstrate how-to tips for the latest enhancements to Lexis Advance. Recommended. — Joe

Docket-based research needed to find “submerged precedent”

“[S]ubmerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions—putative precedent and not mere evidence of decision-making—that exist only on dockets,” writes Elizabeth McCuskey (Toledo) in Submerged Precedent, 16 Nevada Law Journal ___ 2016 (forthcoming)[SSRN]. Professor McCuskey adds “[s]ubmerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself, not just trial courts’ administration of it.” Here the abstract for this very interesting article:

This article scrutinizes the intensely individual, yet powerfully public nature of precedent, inquiring which decisions are made available for posterity in the body of precedent and which remain solely with their authors and the instant parties. At its broadest level, this article investigates the intricate relationships among precedent, access, and technology in the federal district courts, examining how technology can operationalize precedent doctrine.

Theory and empiricism inform these inquiries. Drawing from a sample of district court decisions on Grable federal question jurisdiction, the study presented here identifies and explores the phenomenon of “submerged precedent” – reasoned opinions hidden on court dockets, and not included in the Westlaw or Lexis databases. The study detailed here found that submergence may obscure as much as 30% of reasoned law on Grable federal questions from the view of conventional research.

This article investigates the structural and institutional forces behind submergence, as well as its doctrinal implications. By effectively insulating some reasoned opinions from future use by judges and practitioners, the phenomenon of submerged precedent threatens to skew substantive law and erode the precedential system’s animating principles of fairness, efficiency, and legitimacy. Most urgently, the existence of submerged precedent suggests that Congress’s mandate for public access to federal precedents in the E-Government Act of 2002 lies unfulfilled in important respects. The application of precedent theory informed by empirical observation suggests a more thoughtful approach to technology and public access to precedent.

— Joe

What is the ideal design for a basic legal research program?

In The State of Legal Research Education; A Survey of First Year Legal Research Programs or ‘Why Johnny and Jane Cannot Research’ [SSRN] Washington and Lee’s Caroline Osborne identifies the following four elements in the ideal design for a basic legal research class:

  1. A required research class of a minimum of two credits taught in the spring semester of the first year (1 credit) and the fall semester of the two-L year (1 credit).
  2. A professor with both a JD and an MLS or MIS, preferably admitted to the bar and possessing some experience in the practice of law or an equivalent level of practical experience.
  3. A grading schema equivalent to that of the first year doctrinal courses.
  4. A curriculum that includes research strategy; the fundamental resources of secondary sources, case research, statutory research and the administrative state; problem-solving; and concepts of efficiency and effectiveness.

Here’s the paper’s abstract:

Dissatisfaction with the research skills of the new associate is an oft-repeated refrain. This article explores the state of research education in the law school curriculum. Questions explored include: whether or not legal research is a required first year class; the number of semester of research instruction; the expertise of the professor; number of credits awarded for legal research, scope of the curriculum and observed challenges. Also considered is the impact of a more vigorous writing focus on research skills education. Survey data collected from the two hundred ranked law schools is used to explore these questions and as the basis for reforming research education.

Recommended. — Joe

LLSDC adds Congressional Record sources to its Legislative Source Book

From the announcement by Rick McKinney (Federal Reserve Board Law Library):

The Legislative Research Special Interest Section of the Law Librarians’ Society of Washington, D.C., Inc. (LLSDC) is pleased to announce a new addition to its Legislative Source Book entitled “Sources for the Congressional Record: Free and Commercial”. The new website contains a list with links to most all online sources for the Congressional Record, free and commercial, with dates of coverage, including the bound Record, the daily edition, the Congressional Record Index, and predecessors to the Congressional Record. Also included are brief notations about search, browse, print, and cite retrieval capabilities of the sources as well information on libraries with paper and microform issues. Finally there are a number of links to aid researchers in understanding the Congressional Record, its history, its volume numbers, and what is or is not included in the pages of the Record.

Visit LLSDC’s Legislative Source Book. — Joe

Legal Analytics, A Legal Writing Conference, and Bats Turn Into Turkeys

Yes, it’s been a while.  Between the ever present health issues and building and teaching a set of lesson plans on legal research to our first year students, it’s been tough to get back to the blog.  Well, the teaching part is essentially over until the first week of classes in January.  Let me catch up with a few things, a couple of business and one essentially fun.

The first business item is the announcement I received recently noting that Lexis has purchased Lex Machina:

Today LexisNexis announced that it has acquired Silicon Valley-based Lex Machina, creators of the award-winning Legal Analytics platform that helps law firms and companies excel in the business and practice of law.

A look into the near future. The integration of Lex Machina Legal Analytics with the deep collection of LexisNexis content and technology will unleash the creation of new, innovative solutions to help predict the results of legal strategies for all areas of the law.

With its acquisition, Lex Machina becomes part of the ongoing LexisNexis commitment to offer modern, next-generation solutions that help legal professionals work more efficiently, make better-informed decisions and drive success for their clients, practice and business.

The acquisition is described as a “prominent and fresh example of how a major player in legal technology and publishing is investing in analytics capabilities.”  I can understand that.  As we grew up with Lexis and Westlaw we were taught (or taught) the utility of field searching.  The available information in a document allowed us to search particular judges or attorneys to do our own analysis of their involvement with topics and issues.  We have the ability today to make more detailed analyses.

Expert witness reports are where Lexis and Westlaw mostly provide background information and the track record of particular witnesses.  Both companies offer comprehensive details because there is quite a market for experts in litigation.  Lex Machina is identified with analytics associated with copyright and a few other forms of intellectual property.  I can imagine Lexis and Westlaw expanding analytics for other litigation prone subjects such as medical malpractice and products liability.  I can see this as a new area of competition between the major research databases.

The second business item is a one day conference at Ohio State University:

OSU reference librarian Ingrid Mattson is co-chairing a great one-day conference for the Legal Writing Institute.  I’m sharing the announcement just in case you’d like to attend.  There are several presentations by ORALL members.

Join us in Columbus, Ohio, on December 11 for our one-day workshop, “Collaboration In and Out of the Legal Writing Classroom.” Topics include collaborating with legal writing colleagues for successful scholarship; students working together in the classroom; librarians and legal writing faculty joining forces for more effective research instruction; and connecting with casebook and clinical faculty, the community outside the law school, and university offices to provide meaningful, resource-conscious instruction.

Our workshop website, which includes program details and hotel information, can be found here. Workshop registration can be found here.

Columbus offers a number of unique experiences year round and particularly during the holiday season. Consider staying through the weekend to enjoy a dessertcoffee, or beer tour of a city with a dynamic food scene. Those who are more literary-minded will enjoy a Dickens of a Christmas and a Dickens Dinner at the historical Ohio Village. If you have an interest in politics, history, or architecture, touring the Ohio Statehouse is fun and free. A short walk from the workshop site you can explore the Billy Ireland Cartoon Library and Museum. Finally, for anyone visiting with children or who fondly remembers Jack Hannah and the Columbus Zoo on David Letterman, check out the zoo’s extraordinary holiday light tradition, Wildlights. For more information on the exciting goings-on in Columbus, visit Experience Columbus.

Columbus truly is the heart of it all. We are driving distance from places like Indianapolis, Pittsburgh, Lexington, Chicago, Charleston; and a non-stop flight away from pretty much everywhere else.
We hope to see you in December! For more information about the conference, please feel free to contact us at Kelly.864@osu.edu or Mattson.30@osu.edu.

The conference cost is a very reasonable $45 aside from any lodgings.  I’m not expecting to sample the charms of Columbus while I’m there.  I was interested in going to a Blue Jackets game but it turned out the team is on the road in Winnipeg on December 10th.  The Islanders come in to Nationwide Arena on the 12th but unfortunately I can’t stay over.

And now the fun part.  As part of the Halloween picture extravaganza, I shared costumes and decorations from a number of libraries.  One of those picture sets from Wayne State included periodicals turned into bat decorations.  Well, it seems the bats have turned into turkeys for the coming holiday.  See the pictures below.

Thanksgiving 2 Thanksgiving 3 Thanksgiving 1

Well, I hope to publish more frequently now that my major semester project is effectively over.

Mark

Libguides Are Appearing in Google Scholar Results

I’m in the middle of creating lesson plans for three introductory legal research classes to be taught to first year students by librarians next month.  That’s one reason why there has been a lack of posts in the last couple of weeks, among others.  The task is, how can I put it, time consuming.  That’s another story.

I thought I’d take a moment this afternoon and wander through Google Scholar to see what literature it contains on the process of legal research.  I did the obvious and searched the phrase “legal research.”  At about two or three pages into the search I noticed an entry for Land Use, Planning, and Zoning Legal Research Guide: Home by Vicky Gannon at Pace University.  The citation came up because the title contains the words “legal research.”  I have to admit that I had not expected a libguide to be one of the results in Google Scholar as I had not seen any prior to today.  I use Scholar a lot.  I mean, a lot.

I decided that I would try and search the word “libguide” all by itself and sure enough there were citations linking to any number of guides mixed in with the scholarly articles about the use of libguides.  Many of them were listed as [citation] which linked to an entry in either Bepress or a university commons page that in turn linked to the actual guide.  I found this all quite interesting.  Scholar apparently can be another vehicle for researchers to get to the intellectual output of a law library staff.  My suggestion is for all of you out there to give it a try.  Create some sample searches and see what happens.  I know I will.  This may be another strategy I can use in teaching or advising at the reference desk.

Mark

Ethical considerations in using visual rhetorical techniques in legal writing

Available on SSRN, Michigan Law School prof Michael D. Murray’s The Ethics of Visual Legal Rhetoric is a timely contribution to the legal writing literature. Here’s the abstract:

This Article discusses the application of visual rhetorical techniques in legal writing and the ethical questions that are raised regarding the use of these techniques. It is likely that visual rhetoric will be used in brief writing and general legal communications at an increasing rate because the research and scholarship of a wide range of disciplines — law and popular culture, cognitive studies and brain science, data visualization studies, and modern argument theory in rhetoric — indicate the communicative power of visual techniques. This fact coincides with the development of technology in the production of legal documents, and technology in the reading and reception of legal documents, that allow judges and attorneys to access full-color graphics, imbedded video, and multimedia content, and follow hyperlinks in the normal course of reading legal briefs and memoranda.

The recognition in the literature that visual rhetoric is rapid, efficient, constructive, and persuasive reveals the potential of visual rhetorical devices to serve as topics and tropes in legal discourse to construct meaning and to inform and persuade legal audiences. The visual rhetorical topics and tropes inspire inventive thinking about the law that constructs meaning, for the author and the audience. For many members of the legal writing discourse community — judges, practitioners, government agencies, and academics — the modes of persuasion of visual rhetoric can construct meaning and improve the persuasiveness of legal discourse generally in content, arrangement, and style.

Attorneys should fulfill their professional responsibility to use the best practices to represent the interests of their clients in law practice. However, the cautions of scholars as to the dangerous power of visuals to deceive or to overpower more deliberative forms of rational thought and analysis are not lightly to be dismissed. The speed and power of visuals is seductive. Visual topics and tropes are subject to abuse, and must be used ethically and with careful regard to their propriety as a tool to create meaning and inspire imagination, and not used as a tool of deception or obfuscation within the rhetorical situation at hand. I conclude that visual rhetorical devices are a proper form of legal rhetoric if they are used to construct knowledge and understanding of the meaning and message of the communication and do not mislead or prejudice the audience’s reception or understanding of the communication.

Recommended. — Joe