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Bar Association of San Francisco Member Benefits: Publications

Litigation Tips: Using Graphics Before Trial

By David Newdorf, Newdorf Legal

 

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 timelines (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 Still, most judges and lawyers cling to the outdated notion that only juries benefit from graphics.

Below is example of the use of 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”).

Litigation ChartWhile noodling over the meaning of the rule as applied to one of our cases, 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 were able to distil 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 I wish I’d had in my law school contracts class.

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.


 

David B. Newdorf of Newdorf Legal is a litigator representing businesses and government entities. He is a frequent writer and teacher on litigation skills and sits on the Executive Committee of
the Litigation Section of the California State Bar.

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