THE TECH AGE STAGGERS INTO VIRGINIA
[Posted July 24, 2013] Strange things have happened this week. For example, a month after their being mired in last place in the NL West, my beloved Los Angeles Dodgers swept their way into the division lead Monday night, something that was unthinkable a few weeks ago. Last night, Minnesota Twins catcher Joe Mauer’s wife gave birth – to twins. (They’re both girls, so Mauer is doomed.) And today, the Supreme Court of Virginia announces its first halting half-step into the 21st Century: Lawyers will be permitted to deliver oral arguments using tablets and laptop computers.
In a press release, the court announces that, beginning with the September session, lawyers may bring their iPads into the courthouse, something that those lawyers could never do before, whenever there were justices in the house. The new date comes too late for those lawyers arguing petitions before writ panels on August 28; they have to do things the old-fashioned way.
Now, the policy isn’t as open-ended as you might think. This is not carte blanche for iPads. Lawyers who want to use the devices must write to the court in advance (they require 72 hours’ notice; I strongly recommend more time than that) and “request permission.” Unless the lawyer proves to be an abuser of the privilege, I infer that such leave will be uniformly granted, in the form of a letter that the lawyer may display to the nice Capitol Police officer at the security station at the entrance to the building. (You must bring the letter toRichmond! No letter, no iPad.)
Technically, then, this new policy is only barely distinguishable from the current policy. As far as I know, any lawyer who wants to argue using a laptop can, even now, ask the court politely for permission; the only thing barring her using one is a general prohibition, which the justices are free to waive if they see fit. But the new policy makes that leave presumptive, and I recognize that that’s a noteworthy step.
There are rules. You can’t make last-minute adjustments to your e-notes while the previous case is being argued. That’s because, unless you’re arguing your case, you have to keep your device in a case. (I don’t know if you can continue to use it while the Bad Guy is speaking and you’re sitting at your counsel table; that isn’t completely clear from today’s announcement.) You can’t access the Internet while you’re in the courtroom, and for God’s sake, don’t try tweeting anything, sending e-mails, or updating your Facebook status while you’re in there. You can’t use the device for communication or for recording (audio, video, or photo) of any kind. The full text of the new policy is reprinted below.
This isn’t a pilot program; as far as I know, the court will keep this policy in place until and unless it sees enough problems that the justices rethink the wisdom of allowing such toys in the courtroom. Presumably, the lawyers who get this privilege won’t abuse it.
Two last points. First, I have no intention of seeking such leave in the foreseeable future. I own a laptop, but when I step to the lectern, I plan to carry my trustworthy black three-ring binder (2”; D-ring only; tabbed), and maybe a copy of the appendix if it isn’t too onerous. For my pals such as Jeff Summers and Jay O’Keeffe, an iPad is a wonderful tool for organization; for me, it would be a hopeless distraction.
Second, you may be wondering why I regard this as a “first halting half-step into the 21stCentury” instead of a major initiative toward modernization. When the Supreme Court gets around to permitting video recording, or even audio recording, of oral arguments, get back to me and I’ll revise my assessment. But don’t let this curmudgeonly comment fool you; I applaud the justices for making today’s long-overdue change. Kidding aside, this is the right thing to do.
COMPUTERS IN THE COURTROOM
Counsel presenting oral argument before the full Court, or a panel thereof, is permitted to bring into the courtroom or panel room a laptop, tablet, or other personal computer solely for use during the presentation of oral argument. The computer shall not be used to record any oral argument or other proceeding; shall not be used to take still photos or make a video recording; shall be in silent mode; shall not be used to “tweet,” email, instant message, or otherwise communicate while in the courtroom or panel room; and shall not be used to access the internet via any method. The computer must be kept in a case when not being used during counsel’s argument. If counsel wishes to use a computer for this purpose, counsel must first request permission in writing from the Court at least 72 hours in advance of oral argument. The written permission received from the Court must be presented to the Capitol Police Officer when counsel arrives at the Supreme Court of Virginia building for oral argument. The Court reserves the right to deny such permission on any basis it deems reasonable.