Last week, I came to the Supreme Court to watch the parties argue a case where I had written the amicus brief. With no pressure on me, I could pay closer attention to the lawyers than I usually do.What I took from the session I watched was a bunch of questions about whether to use visuals at oral argument and how best to do It. I’ve been wondering about these things for quite some time. But a couple of things happened to make me think some more about whether visual aids at oral argument are a good idea.
The lawyer for the appellant in the first case, one of the best appellate lawyers in the business, had a Keynote presentation on his iPad. The visuals were good for conveying some points about a statute at issue in the case. The trouble is that the argument began with a bit of a hiccup. The slides on the iPad did not come on when he started. What followed shortly afterward was a few moments of awkwardness as the Chief Justice reminded him that his time was running while he tried to fix the exhibit. Moments later, all was saved. Someone came to the lectern to assist, and the visuals were up and running. The lawyer remained calm during the moment it took to get the visuals up and running, and they ultimately became an effective part of the argument. I hope that I, too, would have remained calm. But, I’m not sure I would have. Keynote and Powerpoint can work great with juries. But I haven’t quite figured out how to integrate it into appellate oral argument yet. And I am not sure that I am going to try it again for a while. I’ve found that it to be one more thing to worry about. And when you represent the appellant in criminal appeals there’s plenty to worry about already. To illustrate, let me move to my own story from the last case I argued there.
The CLE That Started My Thought Process on Visuals
I recently attended a CLE, where the subject of using visuals as part of appellate argument came up. A panelist pointed out that visuals can be helpful at argument, particularly if there is a key phrase from a contract at issue or a particular phrase from a statute. The panel also noted that a photograph can be good if a picture truly does equal a thousand words in your case. But showing a photograph simply for emotional impact is not appreciated. The same panelist mentioned, for instance, that lawyers who display a gruesome crime scene photo appear to be trying to discourage the Court from doing its job. I had that done to me a few weeks ago, so I appreciated the comment.
My Recent Use of Visuals
With all the talk about visuals, I decided to give them a go when I came up two weeks ago to argue State v. Slaughter, a case that turns on statutory interpretation and whether the Court of Appeals has properly read the recidivist statute and felon in possession statute together properly. I was working on this case with two third- year law students and began working up some slides to use. The issues with working up visuals for an appellate argument are legion. The first problem is that the visual can quickly become the focus of your preparation rather than the substantive elements of the case. We worked up the slides for Keynote. Then I began to worry about just the sort of thing happening to me that happened to the other lawyer. So, I called the Court, and the information technology person for the Court kindly and helpfully took me to the courtroom a few days before my scheduled argument, where I practiced with the system. There, I learned a few things pretty fast.
Adventures in Visuals in a Vacant Appellate Courtroom Days Before Argument
The screen at the lectern at the Supreme Court, with its attached pen that you can use to highlight and annotate exhibits, is not great for a southpaw like myself. It’s on the right side of the lectern. And I have to step off to the right to try to make it work while reaching across my body to turn in the right direction, taking me away from the microphone. Then the screen is curvy (it pre-dates the flat screens that are everywhere now), and I had a hard time marking on it, which I suspect is another lefty issue. Lesson learned, don’t try to use the pen. I’m probably the only lefty appellate lawyer in the State, so this may not be a problem for anyone else.
I also decided to bring in paper slides to put on the document camera instead of trying to use Keynote. Among the reasons for this decision was the fact that I was the appellee on the final case of the morning. Meaning, I would have to hook everything in and fire it up in the first seconds of the argument since I was following another lawyer. And, as I tend to get clumsy when nervous, I also feared having yet more stuff in my hand as I approached the lectern.
The Best Visual is a Well-Told Story
Let me contrast all of this to the lawyer who argued for the Appellee on the case where I offered amicus support. This lawyer just bought an iPad, which he uses in his office for handling email and for reviewing documents. Yet, he left it elsewhere when he came to Court. He didn’t have typed up notes much less notes on an iPad screen or laptop screen. And when he began his argument, he delivered the best of all possible visual presentations – a well-told story. The case involved a tragic car accident and turns on whether the police investigation was conducted in good faith, where evidence critical to the defense was not preserved. There were no cables to connect, nothing to print a Kinkos, and nothing to zoom into our out of. Just compelling facts powerfully delivered. And, as the argument developed, there were hard questions meaningfully anticipated and deftly handled. I’m hardly a Luddite, but I find myself leaning away from the use of visuals at my next oral argument, at least until I can figure out how to do it or what place it has in the appellate process.
It’s Not a Jury Trial so Don’t Treat it Like One
Here is where I think it will be difficult for a while to find a place for visuals at argument. Appellate judges are not the jury, and the things that work with a jury can do real damage when tried with an appellate bench. While jurors may have short attention spans and watch as much television as the average American, appellate judges spend much time immersed in the law and expect an intelligent presentation. If you experience a technical glitch before a jury, the judge will usually send the jury out and give you time to fix it. When you have twenty minutes to make an argument and spend the first 2-3 critical minutes hooking a VGA cable into an electronic device, you have lost those minutes and probably several more as your mind tries to recover. Also lost may be your momentum.
There’s this Cool Inexpenive Technology Out Now. It’s Called Paper
The lawyer on the case I was working on had no such problems with paper. Paper doesn’t need to be recharged. And it’s immediately ready when you start out.
Sometimes technology gets in the way and acts as a barrier to communication. I think that it can really get in the way at oral argument. Particularly where oral argument, at its best, is an engaging dialogue between yourself and the court where assumptions are challenged, facts clarified, and hypotheticals explored.
It’s Hard to Find Any Published Articles Endorsing Visuals at Oral Argument
After all the questions generated in court last week began circulating in my mind, I began looking to see what experts in the field think about the use of visuals at argument. And I found that there aren’t a bunch of glowing endorsements out there.
One of the best appellate law books recently printed is Antonin Scalia’s and Bryan Garner’s book, Making Your Case. That book has a whole section about visual aids. I think you will see their take on it from the title of that section, “Don’t Use Visual Aids Unintelligently.” I think a better title might be,“don’t use visual aids.” The section begins, “[g]enerally speaking, visual aids are for jury trials. Judges will be offended by the schoolmarmish use of a chart and a pointer to drive home a point that can be made perfectly well in words.” They advise that an Appendix to the brief is likely the best place to use “visual reinforcement” for a point in your argument. They suggest that it is then best to refer the Court to the Appendix as a point of reference during the argument in situations where “visual aids are useful and proper.”
There’s great coverage of this subject at the Indiana Law Blog. Contained within the blog are quotations from several appellate lawyers in Indiana. There too, I do not find ringing endorsements for the use of visuals at an appellate oral argument. The one that stands out is this one from Jon Laramore. He says, “[d]emonstratives are not often helpful in oral argument. … the point of argument is answering the court’s questions, not explaining a demonstrative.”
Howard Bashman recently wrote on his noted blog, How Appealing about an en banc oral argument before the Third Circuit Court of Appeals. He began the post, “[f]or reasons that I’d be more than happy to discuss further in the event that anyone is interested, I’m not a huge fan of using handouts or demonstrative exhibits at an appellate oral argument.” He then told the story of an argument where opposing counsel moments before an argument handed him a collection of documents that he proposed to hand out to the judges during the argument. In that circuit, opposing counsel’s consent is required before handouts may be used at argument. After noting that opposing counsel’s request was “the first time that I had had that happen to me or seen that happen in more than 20 years of appellate work,” he describe why he refused to consent. Mainly, he decided that he did not want to spend the last moments before argument reading those handouts when opposing counsel could have sought his consent before the day of argument.
And, finally, from The Little Book on Oral Argument by Alan Dworsky, comes even more discouraging words, though from a book originally published in 1991, well before Powerpoint or Keynote were the thing. Mr. Dworsky writes about visual aids in a descriptively-titled section, “Think twice before using a visual aid in an appellate court.” He says that they “create more problems than they’re worth.” He lists many reasons why they are a bad idea, including that they have never been traditionally used, and because “appellate judges are either conservative by nature or are made conservative by a life lived under the principle of stare decisis.” The other thing is that “they take time to set up.” Mr. Dworsky was speaking in terms of putting a chart on an easel. But waiting for an iPad to start talking to the courtroom presentation system could take even longer if you’re having a bad day.
Electronic Visuals Don’t Easily Facilitate Communication
I really would like to know if there is a compelling reason to use visuals in the courtroom. I couldn’t imagine doing an opening or closing before a jury without one or in presenting a CLE without it either. But I wouldn’t imagine leading a panel discussion with visuals. I think the problem is that it is very difficult to see how to present with visuals in a way that does not distract.
A few days ago, I was retained by someone who had also spoken to another lawyer about representation. My iPad battery was dead, so I took notes the old fashioned way and asked lots of questions. He retained me. And a big part of why I got the client had to do with the competitor’s decision to take notes on his iPad. The client said that the lawyer spent time “playing” on his iPad instead of communicating with him. I will probably never do another consultation with an iPad again. I replaced it for meeting notes with a Livescribe Smart Pen, which could be the topic of a whole other blog.I think that oral argument is the same way.
The point of Oral Argument (I’m still learning about Oral Argument, by the way. I’ve had good ones and ones where, had I been hit by a car leaving the courthouse, the oral argument would still be the worst thing that happened all day) is to communicate with the court and articulate to them why your case is compelling and to engage in a discussion of why your weak points should not derail you. Those are two pretty hard jobs, particularly if you have a few judges wishing to engage you in some full contact hypotheticals. The last thing I need is a slideshow that may or may not work and may or may not be helpful added to the top of what is already a pretty intimidating task. For my money, appellate oral argument is the single hardest thing to do in the law. And I don’t think I’m going to let Keynote or Powerpoint become another plate to try to spin in the air when there are so many others going at argument.