Helping Trial Lawyers Navigate the Appellate System

Fifth Circuit Adjusting Rules to Allow (Some) Technology in the Courtroom


The United States Court of Appeals for the Fifth Circuit is considering the following change to 5th. Cir. R. 34.7;

Screenshot 2015-03-05 12.14.21

This proposal is open to written comment by sending an email to to on or before March 16, 2015.

Shortly after the Court announced this change—the first to this rule since 1990—some speculated whether it would pave the way to cameras in the courtroom. Based on what Texas Lawyer‘s John Council reported in this article, that seems improbable. The more likely reason for the update is to bring the Fifth Circuit in line with the reality of lawyers’ now-pervasive reliance on smartphones, tablets, and laptops in their practices, particularly in their roles as advocates.

This conclusion was confirmed when I received a Fifth Circuit oral argument confirmation that included a copy of the Court’s new electronic device policy. That policy—which is not yet available on the Court’s website—generally excludes cameras and recording devices from the John Minor Wisdom United States Court of Appeals Building without the Court’s permission. Laptops, tablets, cell phones, and similar devices with cameras and recording functions are allowed, but must be powered off inside a courtroom during argument unless they are being used by an attorney presenting argument or assisting at counsel table. Social media use inside the courtrooms is prohibited.

Taken together, the revised rule and policy permit advocates to access the tools they need at the appropriate place and time, but guard against the Court’s concerns (identified in Council’s article) about showboating, live-tweeting, and in-court photos. When I go to New Orleans in a few weeks, I’ll be interested to observe how the Court enforces the policy, particularly with respect to smartphones. If I see or experience anything noteworthy, I’ll report back.

For more discussion on this topic, visit Louisiana Civil Appeals and iPhone JD.

Image courtesy of Flickr by Billy Metcalf Photography.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

Subscribe to Texas Appellate Strategy via Email or RSS
Please enter a valid email address and click the button.
Recent Posts
More content can be found in the Search section.