By Graig R. Smith

Over the last year I have been asked to testify before various boards, commissions, and city councils on the issue of banning billboards. City after city, county after county, and state after state are passing bans on advertising that are unconstitutional.

Many of us have been called on at an alarming rate to combat this assault. Most recently, I appeared before the Land Use Planning Commission of Los Angeles County to argue against a proposal to ban billboard advertising of alcohol and tobacco products within 1,000 feet of parks and schools.

While the readers of the Digest are by now quite familiar with the legal arguments that attend such testimony, they may not be familiar with the rhetorical milieu. Thus, my purpose is to report on what you are likely to face in such situations and how to deal with it.

Problem #1 -- Scheduling: Commissions and councils operate on their own time schedules. They call items up for consideration on a whim or push them to the end of the agenda to avoid confrontation and discourage witnesses from attending meetings.

The ad ban on which I was to testify was put on the agenda with only a weekÕs notice, scheduled for 11 am, but was not taken up until 2:30 pm. Worse, the chair of the commission then told us we would have no more than three minutes each to testify. Finally, we were informed that ÒguestsÓ of commission members would be allowed to testify first.

Solution: If possible, ask the commission to schedule the item for a "time certain" on the agenda. This can be done due to the tight schedules of expert witnesses. Try to find a member of the panel who will sponsor you or your witness as a "guest expert." If all else fails, schedule witnesses whose time is flexible and give them lots of warning about the pitfalls of scheduling. Tell them to be prepared for long waits and to bring work or a good novel.

To combat the three-minute rule, give only the highlights of your testimony and ask that the full statement be entered into the record in its entirety. In the highlights, be as provocative and uniquely informative as possible so as to elicit questions from the panel members. In my case, I was asked a series of questions about my data and the attack I made on the data of witnesses on the other side. The sum total time of my responses to questions exceeded 10 minutes.

Problem #2 -- "That Doesn't Make Sense": Most panel members are beholden to a constituency and/or are looking for higher office. As a result, they want to please the public. Banning alcohol and tobacco advertising is a no-brainer for them. Thus, they often become disingenuous when it comes to understanding nuanced constitutional arguments and research. One of the commissioners at my hearing openly stated: "We don't have to deal with constitutional questions. They are for the courts to decide."

Solution: If no one before you does it, remind the panel members of their obligation to uphold the law and the constitution. Then, clearly demonstrate that the law is on your side and indicate that it would be embarrassing for a distinguished panel member to be on the wrong side. Be careful to balance this confrontational approach with one that "helps" council members to understand "counter-intuitive" evidence.

Another way to break through the panel's predisposition is to show what happened in parallel situations. In my testimony, I decided to compare what the Los Angeles Commission was considering to what had happened in other locales. I argued that if simple measures in Atlanta, Boston, and Minnesota had been overturned by the courts, the Los Angeles measure would be even more likely to be struck down.

The argument I used was very deductive and direct. That is, it began with its conclusion and then supported it. I recommend this tactic for expert testimony because it is important to guide the panel members through your argument and evidence if you are to be persuasive.

An inductive or indirect approach often leaves your audience wondering where you are going and how the evidence applies. Once they