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Legal Loop: The courts on mobile devices in the courtroom

In 2007, the iPhone was launched. Thus began the mobile revolution. Now, 8 years later, 77 percent of lawyers use smartphones for law-related tasks, according to the results of the American Bar Association’s 2014 Legal Technology Survey Report. This, even though lawyers are traditionally slow to incorporate new technologies into their work flows. Mobile devices have been the exception, however, and lawyers have latched onto them and embraced them from the very start.

Nicole Black

Nicole Black

The courts have been much slower in their response to, and acceptance of, mobile tools, as evidenced by the recent policy on mobile device use by lawyers promulgated by the United States Fifth Circuit. As Jeff Richardson recently reported on his blog, iPhone J.D., the federal court recently released new rules, which were approved on Jan. 15, and impose fairly strict limitations on mobile device usage by lawyers appearing in Fifth Circuit courtrooms.

Importantly, the rules require that smartphones and tablets be turned off completely at all times, except when an attorney is presenting an oral argument before the court or is sitting at the counsel table. Even then, the devices can only be used for limited purposes and lawyers are expressly forbidden from using cameras or other recording devices and may not use social media while in the courtroom.

The new policy in its entirety is as follows:

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.

This policy, while very restrictive, is more expansive than other jurisdictions. For example, Maryland State Courts explicitly forbid the use electronic devices in a courtroom absent express permission from the sitting judge. (Online: http://mdcourts.gov/reference/cellphonenotice.html).

Of course, there are also courts that are more liberal in their view toward lawyers using these devices in the courtroom, such as the Vermont Supreme Court, which allows lawyers to use mobile devices while presenting to the court and while waiting for their cases to be called, as long as the devices are in “silent mode” and aren’t used for oral communication. Other forms of communication are acceptable, such as texting, as long as the judge has not prohibited said use. (Online: http://tinyurl.com/VtMobileRule).

A partial list of the rules promulgated by different courts across the country on these issues can be found at the National Center for State Courts Website: http://tinyurl.com/CtRulesOnMobile. According to this list, 12 state courts have addressed the use of mobile devices in the courtroom, along with six federal courts, not including the Fifth Circuit, as discussed above.

In other words, many jurisdictions have yet to issue policies regarding the use of mobile devices in the courtroom despite the proliferation of these devices and their wide scale use by both lawyers. Hopefully the courts will catch up with the times sooner, rather than later. After all, lawyers rely on mobile tools to help them practice law more efficiently, allowing them to present their clients’ cases with greater clarity and simplicity. So allowing them to use these devices while in court will benefit not just their clients, but also the judges and the court system as a whole.

Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.

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