“Pause awhile, and let my counsel sway you…”
Friar Frances, Much Ado About Nothing, Act 4, Scene 1
Have you ever wondered about the use of demonstrative exhibits during appellate argument in Tennessee? Let me refer you to the rule—THERE ISN’T ONE! That’s right, there is no court rule to govern the use of demonstrative exhibits, be they charts, graphs, or excerpts from the appellate record. What about power points or other digital presentations? Still no rule. Yikes. So what should appellate counsel do if they want to use a visual aid during argument? I suggest filing a motion saying something like this:
There are presently no codified rules governing the use of demonstrative exhibits during oral argument before appellate courts in Tennessee. Tennessee Code Annotated § 20-9-303 provides that, during civil trials, counsel may use demonstrative exhibits “for the purpose of illustrating the counsel’s contentions with respect to the issues that are to be decided,” so long as counsel does not “in writing, present any argument that could not properly be made orally.” Tenn. Code Ann. § 20-9-303 (2023).
While oral argument before a Court of Appeals is not the same as argument during a civil trial, the reasoning inherent in Tennessee Code Annotated § 20-9-303 may be aptly applied to the use of demonstrative exhibits during oral argument. The use of a visual aid can help both the litigant and the court to conceptualize the issues to be decided. Demonstrative exhibits can aid counsel during argument and help the Court better understand the arguments.
You may ask, if there is no rule, why not just do it without court permission? It is better to ask for forgiveness than permission, right? Bad idea. Opposing counsel likely will object, and the Court may not let you do what you have so carefully planned. Better to file the motion, and see if the Court will grant it. And don’t forget to ask opposing counsel if they will oppose the motion, as the rules require, before you file it.
