Writing Judgments with Pictures

There is a significant and diverse body of work exploring law and visual images (for example, Biber, Giddens, Manderson, Moran, Mulcahy, Sherwin, Young). Peter Goodrich has made a number of contributions to the field. Judicial Uses of Images is his new work in which he explores the use of visual images in published judgments in the Common Law family of jurisdictions.

The table of cases refers to 120 decisions. Most (66) come from the USA. Judge Richard Posner, a US Federal appellate judge until his retirement in 2017, has a particular prominence in this subset. The UK (27) and Australia (15) make up a significant portion of the rest. Only a handful are pre-1990. While there are vague claims that the incorporation of pictures in published judgments is increasing, his primary aim is not to plot their rise but to put them on the scholarly map; to take their appearance seriously and to subject them to scrutiny. Goodrich describes the book as ‘in large part a classification’ (p.20).

One of the organising themes of his system of classification is types of visual images. The major division is between ‘Maps, Diagrams, Schemata’ (Chapter 2), what he calls ‘linear depictions’, and visual images made by way of lens technologies, for example photographs, video, and screen grabs, that are focus of all the other chapters.

Types of approaches adopted by the judiciary is the second theme of his system of classification. One judicial method is the insertion of a picture with little or no explicit judicial comment. Here the visual image functions as a curious surplus to the written text (Chapters 2 and 3). The second method examines judicial uses of visual images as evidential objects (Chapter 4),which purports to bring the world beyond the courtroom into a judgment. Here, the picture is a device used to inject an air of truth into a written judgment by way of exploiting the ‘reality effect’ of visual images made by way of lens technologies.  A third method is explored in the context of what Goodrich calls ‘extispicious depictions’ (Chapter 6). These are pictures that they have attracted judicial forensic scrutiny.  This is judicial reasoning in imagery. The final substantive chapter, ‘Retinal Justice’, is Goodrich’s attempt to turn his project of classification into a jurisprudential invention; a new approach to precedent that incorporates visual images.

Goodrich brings his formidable intellect to the study of visual images in the texts of judgments. His toolbox includes continental philosophy, cultural theory, psychoanalysis, art history as well as legal scholarship. His textual skills are formidable. He has a passion for Latin phrases. He puts his staggering vocabulary on display at every opportunity.  At times the writing is overwhelming. As Goodrich notes in the context of a 5000-page judgement in the Indian case of Siddiq v Mahat Suresh (2019), excess ‘verballing’ begs the question, ‘what is hiding by speaking too much’ (p.38)? For me what gets obscured is Goodrich’s argument and analysis. So what are the hidden gems?

Of particular value is his approach to the appearance of visual images in published judgments. Rather than passing over them he lingers, and asks us to linger too. Their formal marginality, their quality of being ‘surplus’ in a practice dominated by the written text, betrays their excessive quality. The surplus, he suggests, is another, liminal scene of judgment. As he explains, his is a project that asks the researcher to ‘enter the domain of the image as a corporeal and optical experience, an affective journey, a reaching out and a responding to…’(p vi). In doing so,  he demonstrates the potential of visual images to offer many fascinating insights into the judicial mind and judicial practices; into the nature of judgment.

What this book offers is the opening of a new chapter in the development of research on law and visual culture. Goodrich’s analysis draws attention to the ways in which judicial ignorance and apparent naivete of the ‘reality effect’ associated with images made using various lens technologies works to undermine the justice that the judgment purports to articulate. While this doesn’t extend to a call for visual literacy training for judges and lawyers, it is perhaps a project for others to pursue. His focus on Common Law jurisdictions also leaves open the question about judicial practices within the civilian legal tradition.