Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy

American legal culture, tracking the trend within the media culture as a whole, has become inherently more visual. Visual competency is now required for effective persuasion in the courtroom and in a variety of other advocacy settings. The central thesis of this Article is that visual advocacy is here to stay, but that there is a large knowledge gap that prevents advocates from being able to evaluate the professionalism of their own visual arguments and properly respond to the visual arguments submitted by their opposing counsel. Accordingly, this Article offers a detailed outline of the knowledge bases that attorneys need in order to become professional visual advocates. There are two visual advocacy related subjects that all law advocates should gain some understanding of: the brain science of human perception and visual rhetoric. Attorneys should gain a working knowledge of how the mind processes visual information because visual processing differs so markedly from the processing of traditional legal arguments, which are text-based and logo-centric. For instance, with visual information, there is great potential for the mind to rapidly jump to conclusions and be unconsciously influenced by emotion and bias. Recent research on implicit bias and perception only compounds the potential for prejudice within visual arguments. The other discipline that informs visual advocacy is visual rhetoric, a newly emerging area of study that focuses on how images persuade. The Article looks at some common visual rhetoric devices and how they are used in the courtroom, drawing upon well-known cases, such as the Rodney King Assault trial and the Michael Skakel murder trial as well as lesser known cases involving visual advocacy that are just now being reported. After examining the brain science of human perception and visual rhetoric, the Article analyzes the professional issues that arise within visual advocacy. Recent cases have raised some troubling issues with respect to the potential for prejudice within visual arguments. But one reason we are seeing these issues is that attorneys on the other side of visual arguments are not well prepared to counter them. In other words, when one side effectively uses visual advocacy and the other does not, we see unbalanced results. For visual advocacy to flourish, we need a truly adversarial system. However, to develop a professional adversarial system for visual advocacy, the knowledge base for this subject area must expand. Part I of this Article explains the increasing role that visuality is playing in American legal culture. Part II details certain aspects of the brain science that relates to human visual processing. Part III introduces a few basic principles of visual rhetoric, focusing on common visual rhetorical devices and visual logical fallacies. Part II’s explanation of how humans process visual images and Part III’s introduction to visual rhetoric provides the foundation for Part IV of the Article, which summarizes the positive and negative attributes of visual arguments and identifies strategies to encourage a consistent level of balance and professionalism in visual arguments.