Notice & Comment

A Statutory Diagram is Worth 1000 Arguments, by Aaron Hauptman

*This post responds to Aaron Nielson’s post about Judge Douglas Ginsburg in Notice & Comment’s D.C. Circuit Review series.

Recently, Professor Nielson posted about Judge Douglas Ginsburg’s advice to lawyers to use charts to improve their advocacy. Though I lack the experience necessary to speak with authority about good advocacy, the results of research I conducted for Statutory Diagrams, published earlier this year in JREG, completely support Judge Ginsburg’s advice. Lawyers should use visuals in briefs, and judges in opinions, to more clearly communicate complicated information.

The reason visuals are a useful tool for communication—and, consequently, for advocacy—is grounded in the cognitive-load theory of learning. According to this theory, people “learn” when they organize multiple pieces of information into a single “schema” in their mind. Once that cognitively difficult task is done, people can access that schema as a single piece of information, even though it contains multiple pieces of information within it. This is important because people can only hold a small number of pieces of information in their head at one time—estimates range from four to seven. In order to have complex thoughts, as is often required in legal work, people need to create ever more complex schemas to organize the large amount of information into a smaller number of easily accessible thoughts.

Visuals are a useful communication device because, when well-designed, they aid in schema formation. People can often process an image as one piece of information, whereas the text needed to convey that same information would be processed as many. This phenomenon is known as the pictorial superiority effect. Moreover, when visuals organize multiple pieces of information, they reduce the cognitive difficulty of having to figure out how to organize the information yourself, further aiding in schema creation.

Thus, Judge Ginsburg is certainly right that lawyers should use visuals like those in The Visual Display of Quantitative Information to improve their advocacy: lawyers can use visuals to help the judge reading their brief understand complex information more easily, which, in turn, will help the judge understand the lawyer’s argument. And Judge Ginsburg should also be lauded for including visuals in the opinions Professor Nielson discusses for the same reason.

In Statutory Diagrams, I discussed another type of visual that lawyers and judges can use to the same effect. Statutory law is extremely cognitively difficult to process, particularly when multiple sections or sub-sections of a statute are involved in a case. Each relevant section of the statute is a “piece” of information that must be processed, and each connection between those sections is yet another “piece” of information. Lawyers can help their cause in statutory cases by creating visuals, such as flow charts, outlining a statute’s structure how the statute’s legal rules interact with one another. These diagrams would be particularly useful when making structural arguments about the statute (using, for example, the presumptions of consistent usage/meaningful variation, the rule against superfluity, or the harmonious-reading cannon). But they can also be useful whenever understanding the whole of what the statute is accomplishing can inform how a part of the statute should be interpreted.

Below is one example of how this could work, inspired by a diagram made for Statutory Diagrams. Consider the question about the Federal Arbitration Act decided in Hall Street Associates., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008)—whether the grounds for vacating or modifying an arbitration award laid out in the Federal Arbitration Act are exclusive or can be supplemented by contract. The question involves the relationship between sections 9, 10, and 11 of the Federal Arbitration Act, 9 U.S.C. §§ 9–11. Here is the key text:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title . . . . Id. § 9.

In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration … [list of reasons]. Id. § 10(a)

In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration … [list of reasons]. Id. § 11.

Surely the lawyer litigating Hall Street could present this to a judge and parse it over the course of many pages of his brief. But the answer hardly jumps out at you from the text. Now here is a diagram of that same text.

Getting the answer—that the list of reasons in Sections 10 and 11 are exclusive—should be easier from the diagram from the text. First, if you, like me, felt your eyes glaze over at the wall of statutory text, but were able to work through the diagram with less mental effort, then you’ve experienced the pictorial superiority effect. But even if both take the same effort to get through (the diagram is somewhat complex, after all) the answer should still be more apparent from the diagram. This is because the diagram organizes Sections 9 through 11 in a way that make clearer that Section 9’s command to confirm the arbitration award is mandatory unless Sections 10 or 11 are triggered. By visually organizing the sections in a logical progression, the diagram helps form a schema of the relationship between the sections.

Of course, I’m discussing “the” answer as if it is the only one that could possibly be reached. But three justices dissented in Hall Street. It is worth noting that in hard cases there may be ways to diagram the statute supporting different interpretations. Though this raises some normative questions about diagrams, for the purposes of advocacy, this may be more of a feature than a bug.

In summary, just as lawyers can improve their advocacy by including charts of quantitative information—as in The Visual Display of Quantitative Information—or of abstract concepts—as in some of Judge Ginsburg’s opinions—they can improve their advocacy in statutory cases by including diagrams.

Aaron Hauptman is currently a clerk on the D.C. Circuit. Previously, he clerked on the Fifth Circuit and was an Executive Editor for JREG.