Monday, October 31, 2016
Last week I was working on the oral argument chapters of the third edition Winning on Appeal. The book, which was originally written by Judge Ruggero Aldisert, is published by NITA. It serves as a great practical guide to appellate advocacy and includes tips from state and federal judges on effective appellate advocacy. As I was updating the quotes, I saw several judges refer to visual aids at argument. As a federal appellate law clerk, I never saw anyone bring a chart or graph or other visual aid into court. However, it does apparently happen often enough that judges commented on it, and other bloggers have written on the subject.
Generally, while some judges thought that visual aids could be used effectively, such as to walk through complicated statutes or regulations, the judges noted that some attorneys fail to remember that the visual aids can be hard to read from a distance. Therefore, if your jurisdiction permits, you should bring copies of any visual aids to give to the judges. If you can't bring copies, you need to be sure that you are using a font that can be read from a distance. If your visual aids involve technology (such as PowerPoint), be sure that you have it set up to work, or else you could waste valuable argument time playing with technology. Finally, as Georgia attorney Scott Key has noted, using visual aids as a demonstrative can take away from the discussion between the judges and the attorney. Remember, one of the main points of oral argument is to answer the judges' questions, not demonstrate your Prezi designing skills. Anything that distracts from answering judges questions should be eliminated from an argument.
So what should you do if you have something that is better explained with a picture? I think that it is best to include that picture or graphic in your brief. My experience is that nearly every appellate judge takes the briefs with her to the bench during argument. Thus, pointing the judges to a graphic in your brief can be really effective. In Reed v. Town of Gilbert, a case challenging the constitutionality of a town sign ordinance, the attorneys representing the parties challenging the ordinance used graphics in their brief to effectively compare and contrast the nuances of the complicated sign ordinance and show how the ordinance was, in fact, contest-based. I am not sure that the ways that the sign ordinance differentiated between different types of signs would have been conveyed as well without the graphics--especially with respect to the different sizes of signs and the duration that they could be displayed.
One word of caution: If you are going to use graphics in a brief, however, be sure that you don't go overboard, like this attorney did several ago in an antitrust case. Moderation is the key.