Data Visualization and Conveying the Meaning of Legal Precedent

This article was written with John Giraldi PhD .

For whatever reason, I see the world in numbers and images. I always have. As a little girl, I remember using numbers to draw all of my abstract “works of art” – works of art only a mother could love. In order to know what to draw on a canvas, I would roll two or three dice, and, then, depending on the number representing the sum of the dice rolled, I would draw the shape that I (arbitrarily) assigned to the number, and before I knew it, after about 30 or 40 roles of the dice, I had a modern-ish or cubist-ish “work of art.” The world always seems so much more alive through numbers and images, including charts and graphs, particularly when is a numerical backdrop behind the imagery.

Because I see many things imagery grounded in numbers and because my co-counsel and I find viewing images particularly helpful in gaining insights, we decided to prepare an image (think: “chart” or “graph”) of precedents laying-out various factors considered by U.S. Courts of Appeals across the country when considering whether to transfer a case from one U.S. District Court to another pursuant to 28 U.S.C. §§1404, 1406 or 1631. Since the number and types of factors to be considered are numerous, we thought the factors, weighing both for and against transfer, could best be laid-out using imagery. So, we prepared the graphical depiction below and included it IN the document containing our petition for panel rehearing and rehearing en banc in support of our position relating to transfer of the subject proceeding.  

To us, graphs and charts are illuminating ways in which to display information, regardless of the source of information and regardless of the type of information (including, whether qualitative or quantitative). In fact, graphs and charts are sine qua non to effective data visualization.

We fully acknowledge that the graph we included IN the petition for rehearing could have been presented in many different ways; the graphic depiction above is merely the way in which we choose to express the information that we chose to include in the petition for rehearing, all-the-while recognizing that the burden of persuasion, in our current procedural posture, fell, and continues to fall, squarely upon us.

And, … the day after we filed our petition for rehearing, we received a Notice of Defective Filing from the Clerk’s Office. The Notice of Defective Filing stated:

We called the Clerk’s Office to understand precisely what the issue was, and the Clerk’s Office explained that our petition was defective because of the graph that was included in the document (on page 16 of 23) (albeit originally labelled “Exhibit”). We offered to relabel it as a “graph” rather than an “Exhibit,” but the Clerk’s Office said that they viewed the graph – even one contained within the document that is the petition for rehearing – as a separate document in violation of Local Rule 40.1(a).

After several conversations, the Clerk’s Office said we had two options:  

• File our petition for rehearing without the graph, or
• File a motion for permission from the Court of Appeals to include the “graph.” 

That a graph within a document would be considered a separate document and, therefore, not permitted seemed odd. Left with no alternative, we filed a motion for permission of the Court of Appeals to include the graph in the petition for rehearing. And, given the deadline for filing a petition that effectively cured the purported defect in our original petition for rehearing and given that we had no idea when the Court of Appeals would rule on our motion for permission to include the graph, we also had to file the petition without the graph, out of an abundance of caution. At the time of filing, we believed that the “replacement petition” ultimately limited our freedom of expression and our ability to convey the spectrum of factors used in assessing the “interest of justice” standard among the Circuits.

We made our motion for permission to include the graphic depiction in the petition rehearing based principally on three grounds: 

• The Petition for Rehearing as originally filed does not violate the requirements of Local Rule 40.1(a).
• The Petition for Rehearing is not defective and is consistent with the requirements of relevant Federal Rules of Appellate Procedure, including Fed. R. Civ. P. 32(a), 32(a)(1), 32(a)(1)(c), 32(c)(2) and 32(e).
• For the Court of Appeals not to allow inclusion of the graph was a violation of Appellant’s First Amendment rights.

On February 8, 2023, our motion was granted, and we were allowed to file the version of the petition for rehearing that included the graph; though, the presiding judge did not specify the grounds on which the motion was granted.

It remains a mystery to us why the Court of Appeals required a motion in order for us to include a graph (or chart) in our Petition for Rehearing. In using the graph, we merely sought a visual representation of complex information that can be difficult to convey in words alone. Given the access of vast amounts of data and other information and the ability to distill that data and other information to convey ideas and make observations quickly and efficiently, that the importance of data visualization may be lost on the courts is concerning, particularly in the context of all litigants’ rights to freedom of expression.

For additional background, please see the full appellate docket for Appeal No. 21-2649 (Second Circuit), in particular, Docket Entries 134 – 147.