US courts are back on line, with hearings and oral arguments proceeding virtually. Some courts are having conference calls while others are holding hearings via video.
Since social distancing became common, I have handled a number of court appearances that would otherwise have been in person over the phone. Just last week, a friend of mine argued before the Michigan Supreme Court with the argument live streamed via YouTube. (We like our court rooms open to the public in the US.)
The justices were arrayed on the Zoom call, with opposing counsel in their homes. Everyone was dressed in business attire, as far as we could see (they were all sitting down), and everyone had tried to make the surroundings caught by the camera as judicial as possible. No day pajamas on this VC, as some courts have reported seeing. (One Florida judge has ordered lawyers appearing before him to wear proper business clothes and not video conference from bed.)
The era of remote advocacy makes a few things clear for lawyers and clients alike:
- Hello, can you hear me? Counselor, are you there? Those participating in virtual court hearings must make sure that their phone/VC is working and that they know how to work the software. The proper use of the mute button is important.
- Who is on the line? Courts can often see who is logged in. Today, we had 16 different people calling in to listen to our argument when only three advocates were actually going to speak. It makes an impression – sometimes not a good one – to have an army on the phone. People should consider how the crowd they bring to a call or video conference will look to the person deciding their case.
- How do you get to Carnegie Hall? Practice! Having moot arguments has long been important, but it is even more so now. The cadence of a courtroom is very different than the cadence of a call or VC, and advocates need to prepare accordingly. You can only do that by practicing – with the phone/computer you will use, in the room where you'll be, with the amount of commotion you expect to have in your home when you appear.
- Pardon me? Speaking via video or phone makes a good oralist slow down – make sure you are both heard and understood by speaking clearly or slowly. Nothing ruins a good argument like the judge asking you to slow down and repeat yourself.
- Get to the point! Being concise now is as important as ever. Judges are at home, not in a courtroom. They don't have to look at you. They don't even have to listen to you. (I suppose they never did. My grandfather, legend has it, turned off his hearing aid while on the bench when particularly long-winded lawyers appeared before him.)
Advocates should also discuss with their clients whether oral argument is even necessary. Judges are heavily burdened right now. They have just as many cases and are as disrupted as the rest of us. Does a case really need oral argument? Not always. Will a case really benefit from oral argument? Again, not always.
Clients and advocates should seriously consider resting on their papers – it might help move cases and improve outcomes when a court appearance will not add materially to the record before the court.