For reasons that I'd be more than happy to discuss further in the event that anyone is interested, I'm not a huge fan of using handouts or demonstrative exhibits at an appellate oral argument.Hard to fault him there, tho I'm sure his opposing counsel has tried. No excuse for not having those documents handy a week in advance -- or for that matter, attaching them to a brief.
Moments before my en banc oral argument was to begin Wednesday at the U.S. Court of Appeals for the Third Circuit, opposing counsel handed me a collection of documents that he proposed to distribute to the judges to walk them through his presentation. That was, frankly, the first time that I had had that happen to me or seen that happen in more than 20 years of appellate work.
The representatives of the Third Circuit's clerk's office in the courtroom would not allow the handout to be distributed to the judges without my consent. I decided not to consent, because the best use of my time in the moments before the oral argument was not perusing opposing counsel's proposed handout, and there was nothing that had precluded opposing counsel from finding out earlier in advance of the oral argument that my consent was needed and then requesting my consent at that earlier time.
Via Bashman, here also is an Indiana lawyer's post about state-court practice there regarding visual aids.
I generally share Bashman's view, tho NMC posted a counterexample ... along with a couple of instances that prove the rule.