From Visualization to Legal Design: A Collaborative and Creative Process

• DOI: http://doi.org/10.1111/ablj.12101
• Date: 01 June 2017
• Published date: 01 June 2017
• Author: Helena Haapio,Gerlinde Berger‐Walliser,Thomas D. Barton

From Visualization to Legal Design:

A Collaborative and Creative Process

Gerlinde Berger-Walliser,* Thomas D. Barton,** and

Helena Haapio***

INTRODUCTION

The digital revolution has prompted a strong and accelerating interest

in “visualization”—the use of images, photos, icons, diagrams, charts, or

videos to enhance or supplant printed language.

1

Although the law

*Assistant Professor of Business Law, University of Connecticut, School of Business, Mar-

keting Department, 2100 Hillside Road, Unit 1041, Storrs, CT 06269–1041, 860–486-

5864, gerlinde.berger-walliser@uconn.edu.

**Professor of Law, California Western School of Law, 225 Cedar Street San Diego, CA

9210, tbarton@cwsl.edu.

***Associate Professor of Business Law, University of Vaasa; International Contract Coun-

sel, Lexpert Ltd, Pohjoisranta 20, FI-00170 Helsinki, Finland, 1358 9 135 5800, helena.

haapio@lexpert.com. The authors are grateful to Robert C. Bird, Josephine Sandler Nel-

son, George Siedel, and the participants in the Symposium on the Preventive and Positive

Roles of Law at the University of Michigan, Ross School of Business, June 25–26, 2015,

for their helpful comments, and to Peter Anastasio and Leila Hamhoum for their editorial

assistance.

1

Professors Sherwin, Feigenson, and Spiesel describe these trends and their impact on

Western intellectual history. See Richard K. Sherwin et al., Law in the Digital Age: How Visu-

al Communication Technologies Are Transforming the Practice, Theory, and Teaching of Law,12

B.U. J. SCI.&TECH. L. 227, 230 (2006) (“Digital technologies allow the pictures and words

from which meanings are composed to be seamlessly modified and recombined in any

fashion whatsoever, while the Internet allows practically anyone, anywhere, to disseminate

meanings just about everywhere. The Enlightenment-era insistence upon essentialist foun-

dations (whether exemplified by Locke’s empiricism, Kant’s rational categories, or other

totalizing epistemologies) is being challenged by digital experience, which has helped to

inspire an alternative model of knowledge and reality as a centerless and constantly

morphing network of relations.”). Seminal work regarding the impact of Information Age

technologies on the legal system and legal interpretation appears in two books by M.

Ethan Katsh. See M. ETHAN KATSH,LAW IN A DIGITAL WORLD (1995); M. ETHAN KATSH,THE

ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW (1989).

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remains predominately focused on the written word, the appeal of

images to clarify and persuade suggests that legal visualization will be

increasingly explored in research and legal practice in coming years. As

Michael D. Murray writes, “socio-epistemic and law and society studies

affirm that as modern culture becomes increasingly visual, discourse of

every kind must follow suit.”

2

Pioneering visualization studies have been groundbreaking and

expansive.

3

Murray provides a helpful overview of many vectors that

contribute to the understanding and growing use of visualization: “the

scholarship of popular culture, cognitive studies and brain science, data

visualization studies, modern argument theory in rhetoric, the rapid

development of technology in the production of documents, and tech-

nology in the reading and reception of documents.”

4

Some studies are

2

Michael D. Murray, Leaping Language and Cultural Barriers with Visual Legal Rhetoric,49U.

SAN FRANCISCO L. REV. F. 61, 68 (2015); see also Fred Galves, Will Video Kill the Radio Star?

Visual Learning and the Use of Display Technology in the Law School Classroom, 2004 U. ILL. J.L.

TECH.&POL’Y195, 198 (discussing the use of display techniques in teaching today’s law

students who “are more accustomed to receiving information visually than students of the

past”); Elizabeth G. Porter, Taking Images Seriously, 114 COLUM.L.REV. 1687, 1693 (2014)

(suggesting that “[u]nless courts specifically prohibit [visualization], [it] will become the

norm” in legal communication and argument; and describing “multimedia written

advocacy” as “the vernacular of modern communication” “[t]o rising generations of young

lawyers”). For a discussion on the potential for using visualization techniques in private

contracting, see, for example, Thomas D. Barton et al., Visualization: Seeing Contracts for

What They Are, and What They Could Become, 19 J.L. BUS.&ETHICS 47, 47–48 (2013); Hele-

na Haapio, Lawyers as Designers, Engineers, and Innovators: Better Legal Documents Through

Information Design and Visualization, in TRANSPARENCY:PROCEEDINGS OF THE 17TH INTERNATION-

AL LEGAL INFORMATICS SYMPOSIUM 551 (Erich Schweighofer et al. eds., 2014), http://ssrn.

com/abstract52651066.

3

See the highly generative work of Sherwin et al., supra note 1. As will be noted through-

out the article, those authors have continued to expand and refine their analysis and have

been joined by many other insightful authors. Among many important recent works are

Colette R. Brunschwig, Law Is Not or Must Not Be Just Verbal and Visual in the 21st Century:

Toward Multisensory Law,in NORDIC YEARBOOK OF LAW AND INFORMATICS 2010–2012: INTERNA-

TIONALISATION OF LAW IN THE DIGITAL INFORMATION SOCIETY 231 (Dan Jerker B. Svantesson

& Stanley Greenstein eds., 2012); Tobias Mahler, A Graphical User-Interface for Legal Texts?,

in NORDIC YEARBOOK OF LAW AND INFORMATICS 2010–2012: INTERNATIONALISATION OF LAW IN

THE DIGITAL INFORMATION SOCIETY,supra, at 311; Jay A. Mitchell, Putting Some Product into

Work-Product: Corporate Lawyers Learning from Designers,12B

ERKELEY BUS. L.J. 1 (2015);

Murray, supra note 2; Porter, supra note 2; Richard K. Sherwin, Visual Jurisprudence, 57

N.Y. L. SCH.L.REV. 11 (2013); Rebecca Tushnet, Worth a Thousand Words: The Images of

Copyright, 125 HARV.L.REV. 683 (2012).

4

Murray, supra note 2, at 64.

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more psychological or philosophical, analyzing images distinctly from

words.

5

These contributions contrast the cognitive processing, emotional

impacts, or sociological implications of pictures with texts, and they help

explain the potential benefits and dangers of “visual law” in the digital

age.

6

Other studies examine how images might function within tradi-

tional legal systems, focusing on how they may be used persuasively

within litigation.

7

Given the extent to which technology is advancing, permitting a

range of legal visualizations to enter both legal research and practice,

this article explores this evolving field with a focus on the process of visu-

alization development, rather than the product—the image itself. The

article contributes to the existing literature on legal visualization in mul-

tiple ways: first, it offers guidelines for using images in conjunction with

words, rather than in isolation, as much of the cognitive-oriented legal

visualization research suggests. Realistically, legal visualization is almost

5

See generally, e.g., COLIN WARE,VISUAL THINKING FOR DESIGN (2008); Clay Calvert, Every

Picture Tells a Story, Don’t It? Wrestling with the Complex Relationship Among Photographs, Words

and Newsworthiness in Journalistic Storytelling,33C

OLUM. J.L. & ARTS 349 (2010); Lucille A.

Jewel, Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional

Perspective on Visual Advocacy,19S.C

AL.INTERDISC. L.J. 237 (2010); Matthew J. McCloskey,

Visualizing the Law: Methods for Mapping the Legal Landscape and Drawing Analogies,73W

ASH.

L. REV. 163 (1998); Murray, supra note 2; Porter, supra note 2; Sherwin et al., supra note 1;

see also Nancy Illman Meyers, Painting the Law,14C

ARDOZO ARTS &ENT. L.J. 397, 398

(1996); Gila Safran Naveh, Glimmerings of the Gallows: Representing the Holocaust in Film and

Fiction,28T.J

EFFERSON L. REV. 29, 31 (2005).

6

See generally RICHARD K. SHERWIN,VISUALIZING LAW IN THE AGE OF DIGITAL BAROQUE:ARAB-

ESQUES AND ENTANGLEMENTS (2011); [hereinafter SHERWIN,VISUALIZING LAW]; Murray, supra

note 2; Sherwin et al., supra note 1. For a discussion on potential dangers of visualization,

see Hampton Dellinger, Words Are Enough: The Troublesome Use of Photographs, Maps, and

Other Images in Supreme Court Opinions, 110 HARV.L.REV. 1704 (1997); Porter, supra note 2,

at 1752–53 (identifying “three primary dangers of welcoming images into the legal-writing

toolbox: the lack of legal rules or traditions to mitigate the interpretive risks associated

with images; the related potential for visual arguments to warp traditional allocations of

decision-making power; and finally, the risk that image-driven legal argument will vitiate

the intellectual vigor and civility of legal discourse”); Tushnet, supra note 3, at 695

(“Images are dangerous precisely because they seem so real.”); see also RICHARD K. SHER-

WIN,WHEN LAW GOES POP:THE VANISHING LINE BETWEEN LAW AND POPULAR CULTURE 146

(2000).

7

See generally, e.g., SHERWIN,VISUALIZING LAW,supra note 6; Dellinger, supra note 6; Ellen P.

Goodman, Visual Gut Punch: Persuasion, Emotion, and the Constitutional Meaning of Graphic

Disclosure,99C

ORNELL L. REV. 513 (2014); K. Preston Oade & Leslie C. Annand, Winning

with Visual Evidence, 25 COLO.LAW. 35 (1996); Porter, supra note 2; Tushnet, supra note 3.

2017 / From Visualization to Legal Design 349