Tuesday, November 12, 2013

A Picture Is Worth A Thousand Words

Photos are staple evidence in many trials.  But they pop up less frequently in briefs.  Briefs that incorporate photos can be very effective in certain types of cases—such as copyright and trademark infringement actions.  Photos can go a long way toward showing a judge what a litigant cannot effectively describe with words alone.

Take, for example, a recent complaint for declaratory judgment.  An entrepreneur, Dan McCall, produces and sells items that parody the NSA and the Department of Homeland Security.  For example, one of McCall's creations features the NSA seal over the words "Spying On You Since 1952."  McCall has sought a declaration that he did not violate federal statutes, which prohibit the use of the NSA and DHS names and seals in a way that conveys the impression that the agencies approve or endorse the use.  As you can see here, in his complaint, McCall included pictures of the items he sells.  These photos, to me, effectively show that no reasonable person would believe the NSA or the DHS endorses the items and, therefore, McCall did not violate the statutes. 

And, as we’ve seen before, the creative use of photos can be wonderfully impactful in other types of cases as well.  One of my favorites is a motion filed by counsel for Mark Cuban.  Cuban was sued by Ross Perot Jr., who alleged Cuban mismanaged the Dallas Mavericks.*  Cuban offered this photo as the only authority in support of his motion for summary judgment.

Cuban’s argument was simple: How can a team that went from being one of the worst professional teams under prior ownership to NBA champions under Cuban’s ownership have been mismanaged?  The trial judge agreed with Cuban and granted his MSJ.  Cuban could have cited documents and deposition testimony to support his MSJ—and might still have prevailed.  But a photo of the victorious Mavericks hoisting the Larry O’Brien Championship Trophy was, in my opinion, far more effective than any other evidence Cuban could have offered.  

This tactic is not for the faint of heart—you’ll notice that Cuban’s lawyers hang their (10-gallon) hats on that single photo.  The motion contains no statutes, case law, or other documentary support.  But could we expect anything less from lawyers for the incorrigible Cuban?

*Perot claimed Cuban’s mismanagement significantly decreased the value of Perot’s property around the Mavericks’ American Airlines Center.

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