PDA (Profound Demonstrative Art)
“I have, since I was three year old, conversed with a magician most profound in his art.”
In rare cases, demonstrative exhibits allow appellate counselors to better present their arguments in a manner that is helpful to the Court. Sometimes, the use of a visual aid can help both the litigant and the court conceptualize the issues to be decided. Tennessee Code Annotated sec. 20-9-303 states:
In the trial of any civil suit, counsel for either party shall be permitted to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with the counsel's argument to the jury for the purpose of illustrating the counsel's contentions with respect to the issues that are to be decided by the jury; provided, that counsel shall not, in writing, present any argument that could not properly be made orally.
While there are presently no codified rules governing the use of demonstrative exhibits during oral argument before appellate courts, the statute above can be persuasive. If you feel that a demonstrative exhibit would enhance your argument of the issues, file a motion to use one with the Court. You should reference the statute above in your motion and accompany it with a memorandum of law communicating why the demonstrative exhibit is necessary. In accordance with Tenn. Code Ann. § 20-9-303, you should confirm that you will not present any argument with your exhibit that “could not properly be made orally.” Also, contact adverse counsel to confirm whether they oppose your use of a demonstrative exhibit, so you can communicate their position to the Court.
Do not use a demonstrative exhibit as a crutch. Your solid briefing and well-prepared oral argument should stand on their own. Only use the demonstration if it lends profundity to your art.
