Yesterday, the Sixth Circuit issued a new policy on the use of electronic devices by counsel during oral argument, available here. Prior to that policy, the Sixth Circuit generally prohibited the use of any electronic devices at oral argument. As the evolution of the electronic record and electronic briefing took place, however, this caused practical problems. Since we no longer had the trusted joint appendices, and the record was electronic, what was counsel to do at oral argument if he or she wanted to have access to the record? Sure, some things could be printed out, but you never know what a judge may ask at argument. As a result, in recent months, the Sixth Circuit began adhering to an informal policy that allowed counsel to send a letter in advance of oral argument to the panel requesting permission to use an electronic device (such as an iPad) at oral argument. These requests were almost always granted, but the Court saw a need to formalize this in order to ensure consistency.
The result was the policy that was just issued, which permits counsel to utilize electronic devices at oral argument subject to certain restrictions. Also, it should be noted that only counsel is permitted to use these devices rather than others who might be attending the argument. The Court also does not provide wi-fi access in the courtrooms, and therefore your device must have that itself, or the relevant portions of the record or cases should be downloaded onto the device so that no internet access is needed. The new policy is certainly a welcome development and will facilitate the use of electronic records during the course of oral arguments. But be prepared – judges may began to expect all counsel to have the complete record within easy access at oral argument. So be sure to bring it (and more importantly, know where to find things in it!).
