Guest Muse #1 - David Raybin

Dear Readers,

This week I am pleased to introduce you to the Bard of the Bar’s first Guest Muse! Please welcome my friend and colleague David Raybin of Raybin & Weissman P.C. I am excited by this opportunity to enliven and expand the conversational scope of this blog. Take it away, David:

“Ah, what foods these morsels be.”

• Raybin to Capparella over lunch

I consider myself a Bard of the Bar fan. So much so that I wondered if I might be able to get in on the action. Donald indicated that, as he was attending the Stratford Shakespeare Festival in Ontario, Canada this week, this was the perfect time for me jump in and offer my own musings on appellate practice. That said, I’d like to weigh in on the use of demonstrative exhibits in appeals.

Appellate argument is a form of court “hearing,” which is auditory. We remember more of what we see. Thus, appellate argument can include the rare demonstrative “exhibit.” As long as it is “in the record,” one can utilize a document or drawing in argument. Typically, where it is a large poster, one would want to advise the clerk that this will occur and as a courtesy, opposing counsel.

     [Capparella commentary: It might be necessary to file a motion to use the demonstrative exhibit if you think the other                                                       side might object at the oral argument and throw a wrench in to your plan.]

Good point, Donald.

Examples of demonstrative exhibits: 

A contested survey might be effective in a land dispute. Or where an issue concerns the propriety of a photograph, the picture in question could be displayed.

What about the absence of evidence?  In a case where   there was no Miranda waiver, I held up a blank piece of paper and said, “here is my client’s Miranda waiver.”  That the page was blank was not lost on the Court.

Electronic media such as short videos present more challenges as these require a screen large enough so they can be seen.  And the “you better be sure it works,” notion has particular significance here. I would suggest a motion for this as well, so the Court knows it’s coming.

Words are usually morsels enough in an appellate conversation, but a well-placed exhibit can be an effective garnish.