Visuals in the Art of Legal Writing
The old adage “a picture is worth a thousand words” can take on a whole new meaning, when you’re subject to a word limit. Including the pertinent visual from the trial court record (such as a photograph, plat, map or other drawing) in an appellate brief is simple[1] and can be more effective that a written description of the image. A visual reproduction allows the writer to magnify, highlight or “call out” an area or detail germane to the appeal, as well as grab the reader’s attention, as images are out of the briefing ordinary. Retired Judge Richard A. Posner wrote in support of this cause:
Wherever possible, use pictures, maps, diagrams, and other visual aids in your briefs. Some lawyers seem to think a word is worth a thousand pictures. The reverse, of course, is true. Seeing a case makes it come alive to judges.
Many years ago, I was on the panel that heard an appeal in a trademark dispute between the Indianapolis Colts and the Baltimore CFL Colts. The briefs described the trademarked products (such as hats and T-shirts) but did not include pictures. At the oral argument, one of the judges (OK, I confess—it was I) asked the lawyer for the Indianapolis Colts whether he had any of the products with him. He was a little startled but went to his briefcase and pulled a pair of hats, one an Indianapolis Colt hat and the other a Baltimore CFL Colt hat. The hats looked identical. He won his case at that moment. He was lucky that he was asked that question. He would not have needed luck had he included a photograph in his brief.[2]
The Federal Rules of Appellate Procedure expressly allow for the use of visual aids in appellate briefing, and several other states[3] have followed with additional parameters for when a visual is, and is not, appropriate:
Federal Rule of Appellate Procedure 32(a):
(a) Form of a Brief.
(1) Reproduction.
* * *
(C) Photographs, illustrations, and tables may be reproduced by any method that results in a good copy of the original; a glossy finish is acceptable if the original is glossy.
Massachusetts builds upon the Federal Rule:
Massachusetts Rule of Appellate Procedure 20(a):
(a) Form and length of briefs, appendices, and applications for and responses to direct and further appellate review
* * *
(B) Visual aids, including images, photographs, illustrations, diagrams, charts, or tables, may be included in a brief, an application for direct or further appellate review, or a response to such an application. A visual aid shall:
(i) be supported by appropriate citation;
(ii) not include any material that is impounded; depicts a minor, violence, death, or pornography; or is otherwise gruesome or indecent in nature; and
(iii) comply with the requirements of Rule 18(a)(1)(F) concerning quality, legibility, accuracy, and color.
As of April of this year, the Iowa Supreme Court expressly permits the use of images in briefs:
Iowa Rule of Appellate Procedure 6.903(1):
b. Images. Charts, diagrams, graphs, photographs, or other images may be included in a brief; however, images depicting a person are not permitted without leave of the appellate court. Images that contain information considered confidential or protected by statute, rule, or court order may not be included in a brief. To the extent practicable, text in charts, diagrams, or graphs should follow the requirements in rule 6.903(1)(g).
Examples of useful images in appellate briefs, according to the Iowa Rules of Appellate Procedure Substantive Review Task Force, include “Boundary-dispute maps” and “Accident-reconstruction diagrams.” The Task Force also advised that the following images should ordinarily not be included: “Autopsy photos,” “Photos depicting injuries or bodily fluids,” and “Other images that unnecessarily invade the privacy of a party or other person.”[4]
Maine prohibits the use of any image that is outside the record on appeal:
Maine Rule of Appellate Procedure 7A:
(a) Brief of the Appellant.
* * *
(2) A brief shall not include:
(A) any documents or images that are not a part of the trial court file or the record on appeal;
(B) any documents that are, or include, pictures, videos, or other images (i) of persons under 18 years of age, (ii) of adults subject to a guardianship or mental health commitment proceeding, or (iii) that depict nudity or sexual or sexualized acts;
(C) except for a brief prepared by the State in a child protective case, any documents or information made confidential by statute or court order, or made “nonpublic” by the Maine Rules of Electronic Court Systems. Documents or information precluded by this section may be included in a brief only with leave of the Court.
(b) Brief of the Appellee. The brief of the appellee shall conform to the requirements of subdivision (a) of this Rule. . . . .
In Maryland, the Maryland Rules do not expressly permit the use of photographs or other images in briefs. See Md. Rule 8-504. But the value of visual aids should not be doubted, given that opinions from each appellate court have utilized them, including:
- A plat of subdivision (a trial exhibit), utilized by Judge Graeff in an opinion concerning an easement to access the water, Buck v. Steele, Case No. 976, Sept. Term 2023 (July 5, 2024);
- A vicinity diagram (also a trial exhibit), utilized by Judge Leahy in an opinion concerning a public road by prescription, Bay City Property Owners Association, Inc. v. County Commissioners of Queen Anne’s County, et al., 264 Md. App. 385 (2024); and
- A demonstrative flowchart, utilized by Judge Albright in a procurement case, Matter of Maryland Bio Energy LLC, 263 Md. App. 215 (2024), to explain the corporate ownership structure of the contractor;
- A demonstrative table to show a side-by-side comparison of two criminal offenses, utilized by Justice Gould in Matter of McCloy, 488 Md. 326 (2024), to explain why the elements of one offense were broader than the other.
Use of visual aids in appellate briefs should continue to be encouraged, and in the absence of an express directive in the Maryland Rules, examples in the Maryland appellate opinions as well as the rules from other jurisdictions offer some guidance on acceptable use, including:
- A visual aid can serve a variety of purposes, such as an orientation of location, an illustration of complex organizational structures, or a summary of comparative analysis;
- Use of visuals is not an opportunity to introduce new evidence, so any photograph or other image should be a reproduction from the record and accompanied by a citation to the record extract;
- The image should not be offensive, inappropriate for public inspection, or otherwise considered an invasion of privacy;
- If the visual is truly to aid the court, then it must be pertinent to the issue on appeal.
[1] PDF Readers like Adobe or Foxit offer a “snapshot” tool, to capture a specific section of the PDF document as an image, which in turn may be pasted into the appellate brief. Once in the brief, the image should be followed by a citation to the record, including an explanatory parenthetical for any changes, highlighting, or other emphasis added, much like a block quotation.
[2] Hon. Richard A. Posner, “Effective Appellate Brief Writing,” TYL (Sept. 27, 2016), available at https://www.americanbar.org/groups/young_lawyers/resources/tyl/professional-development/effective-appellate-brief-writing/.
[3] This brief blog post provides a few examples of other states that allow for the use of photographs or other images in appellate briefs. It is not a complete, nationwide survey on the issue.
[4] Iowa Rules of Appellate Procedure Substantive Review Task Force, “Updates to the Iowa Rules of Appellate Procedure” (Oct. 30, 2023), at pg. 10, available at https://www.iowacourts.gov/static/media/cms/Appellate_court_rules_PowerPoint_699C27D51006E.pdf.
Maryland Appellate Blog 