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Tuesday, January 18, 2011

A teaching moment - "Is it usual to use 'big poster/charts' in oral arguments?"

This entry is the first of an occasional series ...

In this ILB entry on Jan. 11, 2010 the ILB reported that oral argument had been held before a Court of Appeals panel in the case of JK Harris & Company, LLC, vs. Ronald Sandlin, and it appeared from the few seconds of 6News video showing the actual argument that one of the attorneys was using a big poster/chart. I asked IU-Indy Law Prof Joel Schumm, who does mainly criminal appeals, whether this was unusual. He responded:

Yes, it is uncommon. The staff at the Supreme Court seems to discourage it because, I believe, (1) often the justices can't see what is on it, (2) it doesn't show up on the webcast, and (3) the lawyer seems to wander from podium/mic and becomes more difficult to hear. Handouts are usually more effective. Counsel can give them to staff the morning of the argument or file them in advance. Everyone is then, literally, on the same page.

The Court of Appeals' courtroom is smaller, so the judges may have been able to see the enlarged arbitration agreement at issue yesterday.

Rule 53(F) does allow for physical or demonstrative exhibits.

Prof. Schumm sent links to a couple of examples in: In the Matter of James R. Recker - "Watch around 12:50; also note the other attorney takes down the exhibit when he begins at 29:50. At 31:50 Justice Sullivan thanked him for putting down the diagram because it wasn't relevant."

Another attorney who appears frequently before the Indiana appellate courts in civil appeals, Maggie L. Smith of Frost Brown Todd LLC, offered this response:

If your demonstrative exhibit is simply a blow up of text, then it is rarely helpful and should be avoided. But sometimes maps or pictures form a critical basis of understanding the issues on appeal. Ideally, the parties would have embedded these maps/pictures into their briefs or included them in an Addendum (instead of just putting them into the Appendix). If this is done, it makes the use of demonstrative exhibits unnecessary during oral argument because practitioners would simply direct the panel to the page in the brief or the addendum (which all the judges have right there before them).

But the practice of embedding pictures/maps and using an Addendum has still not caught on in most appeals, so it can be helpful to blow up a map/picture from the appendix and highlight it at oral argument. Recently I was hired to do an oral argument and in preparing to do the argument, I realized that a map was critical to understanding the issues, but the parties had not reproduced it in the briefs or an Addendum. I used a blow-up poster of the map in an oral argument, and it made a big difference.

But whatever is on the poster should also always be reproduced on a separate 8x10 or 8x14 handout to give to the judges during the argument as well.

While not required, the preference of both the Court of Appeals and Supreme Court is to file a notice telling the court of your intent and letting them know why it’s appropriate. It’s also a good idea to give opposing counsel a heads up and even better would be to let the court know counsel has no objection in your notice itself.

Schumm adds:
I agree filing some sort of notice, in advance, is a good idea. This avoids the awkward possiblity of opposing counsel objecting or the Court expressing confusion or dissatisfaction when the exhibit is used.

Technology that allows everyone to see an exhibit would be nice in the appellate courtrooms. Not for painful PowerPoint monologues but for carefully thought-out, selective quotations of a statute, contract, etc. or for a key diagram. The Wynne Courtroom at the law school is equipped with screens visible to the audience and the bench.

Jon Laramore, lead partner in Baker & Daniels' appellate practice group, writes:
Demonstratives are not often helpful in oral argument. Our Supreme Court, in its written instructions to those presenting oral argument, explicitly discourages the use of demonstratives in blow-up chart form because they can be hard to see and require the lawyer to leave the microphone. The same would be true in the Seventh Circuit. In the Supreme Court courtroom, it is easier to give each judge a handout with any material the lawyer presenting argument wants to use. The smaller format also makes the demonstrative less the center of attention, which generally is good because the point of argument is answering the court’s questions, not explaining a demonstrative.

It also is much better when the demonstrative is taken directly from the record. Then no one can complain about its legitimacy or that it isn’t proper for the court to consider.

The Court of Appeals courtroom is smaller, so the issues of visibility and audibility are less. I still prefer using 8.5 x 11 handouts rather than blow-up charts in that courtroom. I also remember an argument more than ten years ago presented by a Chicago lawyer in the Indiana Court of Appeals in a labor case. He came with a large blow-up of the statute, but it still was in small enough print that it was difficult for the judges to read. He started off talking about the chart, and his entire time was used up by questions about the chart rather than the points he wanted to make. Ever since then, I’ve been wary of using a large chart because it has the potential to distract from the main points an advocate is trying to make. When there’s a handout rather than a chart, it seems easier to refocus the discussion away from what’s on the page when it’s the right time to do so.

Here is the part of the Supreme Court's instructions for counsel scheduled to present oral argument to the Supreme Court relating to use of exhibits:
If you use an exhibit as part of your argument, you may want to consider limiting such use to 8.5" x 11" documents copied from the record of proceedings. Using some form of document from outside the record of proceedings might be useful in the right type of case, but bear in mind that new evidence cannot be introduced at this stage of the proceedings without leave of court obtained well in advance of the argument. If you use a documentary exhibit, have enough copies for each Justice and opposing counsel. The Sheriff or someone from the Division of Supreme Court Administration will place these on the bench before the argument begins. Using exhibits placed on an easel would be unusual and can be problematic in the Courtroom. The Justices are seated about eighteen feet from the speaker’s podium, making most visual aids hard to see. Further, to point to the visual aid, you almost certainly will have to separate yourself from the podium microphone, making it hard for you to be heard. Also, the exhibits will not be picked up by our webcast cameras (see below). Please keep these considerations in mind.
The Court of Appeals has not published similar instructions. Its courtroom is much smaller. Also keep in mind that the COA often takes its oral arguments "on the road" to various non-courtroom settings.

Posted by Marcia Oddi on January 18, 2011 10:45 AM
Posted to A teaching moment