There are countless ways that an iPhone and iPad can be useful to an attorney while in court — whether you are at counsel table or just monitoring proceedings from the cheap seats in back. I often use my iPhone to look up a statute, check my calendar, get some information from an email, or remind myself of the name of another attorney in the courtroom. I often use my iPad to look at a case cited by an opponent, review the key part of an exhibit or transcript, or take notes. But you cannot do any of this unless the court lets you use electronic devices in the courtroom. I remember a time many years ago when the Eastern District of Louisiana did not allow any cell phones, even if turned off, and if my Palm Treo was still in my pocket, I had to walk back to my office, a few blocks away, and leave it there. Many courts are now more lenient, but attorneys should not just assume that it is okay to plan to use an iPhone and iPad in court. Instead, it is wise to first determine if there is an applicable court rule on the issue.
I write about this today because Ray Ward, an appellate attorney at my law firm, has a case that is soon set for oral argument before the U.S. Fifth Circuit, and in connection with that case, yesterday he received a notice from the Fifth Circuit of a new policy on electronic devices in the courtroom. Ray wrote about the notice (and attached a copy) in this post on his Louisiana Civil Appeals blog. In short, you can now have an iPhone or iPad in the courtroom, but it must be turned off unless you are presenting argument or at counsel table. And even then, you cannot take pictures or video, nor can you use social media. Here is the text of the rule, which does not yet appear to be on the U.S. Fifth Circuit website:
POLICY ON ADMITTANCE OF ELECTRONIC DEVICES INTO THE JOHN MINOR WISDOM UNITED STATES COURT OF APPEALS BUILDING
A. Cameras and recording devices are not permitted in the John Minor Wisdom United States Court of Appeals Building ("Building") without the court permission. Laptops, tablets, cell phones, and other similar devices that contain cameras or recording functions are exempt from this subsection but are still subject to (B)—(D).
B. After visual inspection and x-ray by a Court Security Officer, electronic devices may be admitted into the Building.
C. Unless prior court permission is obtained, all electronic devices must be turned off (not "vibrate-only" mode or airplane mode) when inside a courtroom where a Fifth Circuit argument is being held. However, an attorney presenting argument or assisting at counsel table may use a laptop, tablet, or similar device. If the laptop, tablet, or similar device has a camera or recording device, those functions may not be used inside the courtroom. At no time may anyone use social media inside a courtroom.
D. Under no circumstances will disruptive behavior be tolerated in any courtroom where a Fifth Circuit argument is being held. Violators will be promptly removed.
Approved January 20, 2015
It is great that the rules now officially and explicitly permit some use of an iPad. It can be useful to have an iPad at the podium that contains electronic copies of all of the briefs, cases, and the record on appeal so that you can quickly access something if needed without having to lug a lot of paper. I have also seen people work from an outline on their iPad while presenting an oral argument, although I haven't done that myself. Note, however, that if your case goes up from the Fifth Circuit to the U.S. Supreme Court, you cannot use electronic devices there. The Supreme Court's guide for counsel (PDF link) provides: "No personal computers, cellular phones, cameras, PDAs, or other electronic devices are allowed in the Courtroom and they may not be used in the Lawyers’ Lounge. Counsel and co-counsel may leave such devices, coats, hats, and similar items in the Lawyers’ Lounge. Others can check such items in lockers located at the front of the building on the first floor (Courtroom level)."
Note that in the Fifth Circuit, if you are not presenting oral argument or at counsel table, you cannot use an iPad. This is a shame. Even putting aside the issue of whether tweeting or using social media in the courtroom ought to be banned (it doesn't strike me as being disruptive), it is often useful for attorneys monitoring an oral argument to use an iPad to take notes, to check on something in the briefs, etc. In light of this new rule, however, do not plan to do so when you are watching an argument in the U.S. Fifth Circuit.
In my experience, trial courts are generally more lenient on the use of iPhones and iPads by attorneys in the courtroom. In some ways, they need to be. For example, selecting dates is often an issue in a trial court, and I almost always see attorneys using their iPhone or iPad to check availability — as do I.
The Eastern District of Louisiana now explicitly permits the use of an iPhone or iPad by attorneys in court. Local Rule 83.3.8 includes this language:
Any member of the Bar of this court may, subject to security screening, bring personal digital assistants, cellular telephones or computers (“Authorized Electronic Devices”) into the courthouse for that attorneys’ own use and for presenting, managing, and accessing documents and files for the presentation of evidence during trials and proceedings. Any Authorized Electronic Devices with the capability to make or record images or sounds must be off whenever the device is in any courtroom or its environs, and the use of any such device to record, transmit or photograph court proceedings is prohibited. All sound emitting capabilities (including ringtone or vibration sound) of any Authorized Electronic Device must be off in any courtroom.
In Louisiana state courts, the Uniform Rules for District Courts provides in Rule 6.1(f): "A judge may prohibit the use of electronic devices, including cellular telephones and recording devices, in a courtroom." But in my experience, the prevailing rule for Louisiana trial court judges is that you can use iPhones and iPads in court as long as they don't make any noise.
If you are aware of any interesting rules in the jurisdictions in which you practice on the use of iPhones and iPads in the courtroom, I'd love to hear about them. And if you don't mind sharing with others, write about it in a comment to this post.
