May 27, 2020 Appellate Issues | Spring 2020 | Council of Appellate Lawyers

Appellate Advocacy in the Age of COVID-19

By Jill M. Wheaton

On May 4, 2020, the ABA’s Appellate Judges Council presented a webinar entitled “Appellate Advocacy in the Age of COVID-19”.  Justice David Thomson, of the New Mexico Supreme Court, served as facilitator.  The panel presented thoughts about, and recommendations regarding, telephone or video appellate arguments from three points of view – court staff, the appellate bench, and the appellate bar.

Court Staff Perspective

Like many other chief clerks of a court or court system, Jim Hivner, the Clerk of the Appellate Courts in Tennessee, was confronted quickly with the need to accommodate remote appellate oral arguments when the Tennessee Supreme Court decided to proceed with video arguments beginning April 1.  Having studied what other state courts were doing, Jim learned that most court systems were using Zoom or WebEx.  Other platforms being used, although not as often, include GoToMeeting, Microsoft Teams, and Skype.  There are pros and cons to each system and each clerk should confer with his or her judges about what system to use, considering such factors as:  ease of use; cost; accessibility; functionality; and interoperability.  The court will also need to determine how to make the arguments accessible to the public.

Once a system is selected and implemented, the court should do a practice run with the judges and court staff before an actual argument is held.  It should also conduct a practice run with the practitioners before each oral argument session. The Tennessee Supreme Court and Court of Appeals both settled on WebEx, as they had used it before for conferences amongst the judges and were familiar with it. 

 Judges’ Perspective

Judge Albert Diaz, of the United States Court of Appeals for the Fourth Circuit, and Justice Eva Guzman, of the Texas Supreme Court, gave their thoughts as federal and state court appellate judges, respectively.  

Judge Diaz noted that his court initially cancelled all of its oral arguments, but would soon be conducting a remote en banc argument.  Going forward, the various panels will determine whether to proceed with a remote argument or decide a case on the briefs; if they decide to hold an argument, they will then decide if it will be a telephonic argument or a video argument.  Some judges, especially in the federal court system, are more comfortable doing phone arguments than video.  Judge Diaz also noted that his court has a courtroom devoted to video arguments, and while some judges have indicated they will do video arguments from home, others prefer to come to the court for video arguments.

Justice Guzman noted that in most cases, the Texas Supreme Court has been giving parties a choice between a virtual argument now, or an in-person oral argument in the fall.  It has also extended the time for video arguments by 5 minutes per side to account for time lags and delays created by the electronic format.  Both judges noted that their courts worked closely with the clerk’s offices to determine the protocols they would use, and did practice runs with the judges. 

Both judges stressed the need for attorneys to do everything they can to make a remote argument as much like an in-person argument as possible:  dress in courtroom attire; stand if possible when making your presentation; use a blank background so as not to distract the court;  keep eye contact with the court; put your notes in front of you so you are not looking to the side or at another monitor when making your argument;  look for a judge raising his or her hand or trying to get your attention; and, as always, answer the question asked.  Justice Guzman stressed that all participants must mute themselves except when they are speaking so as to avoid feedback and extraneous noise.  Attorneys should also realize that, with video arguments, they will be seen the entire time, even when not speaking, and, if not muted on both video and telephonic arguments, can be heard unless muted.  Most courts are putting a clock somewhere on the screen, and attorneys should keep an eye on that.   

As for preparation by the bench, most judges virtually confer with their law clerks before the argument, and are conducting the same kind of post-argument meetings they normally conduct, albeit virtually.  Some courts have agreed that during the oral argument, the court will ask questions in a pre-determined order, like the United States Supreme Court did in their recent telephonic arguments, while others will proceed as they usually do with questions asked spontaneously.  After argument, the judges confer as they typically do, albeit virtually.  When asked if virtual arguments are a stop-gap during the current crisis, or will continue to be used when the crisis has passed, both judges agreed that such proceedings will be utilized more going forward, especially in pro bono appeals. 

Practitioners’ Perspective

Jeffrey Gerish, of Plunkett Cooney in Bloomfield Hills, Michigan, and Andrew Simpson, a sole practitioner in Christiansted, Virgin Islands (who has conducted many telephone and video arguments for some time now, given his location), spoke last, as appellate practitioners.  Jeff started the discussion by noting that, if you are given the option of proceeding by phone or video argument, or waiting for an in-person argument in the future, you should consider whether a delay will help or hurt your case, and whether your case is one where live engagement will make a difference – remote arguments simply aren’t the same as an in-person argument.

Andy recommended that practitioners consider purchasing a webcam and/or a USB microphone with noise cancellation features.  If you get a webcam, make sure to place it at the top of your monitor, and not on the side, so you are looking at the judges during the argument.   Check your lighting to make sure you are well lit, with no ill-placed shadows, and make sure the monitor is placed so as to face you head-on, not from above or below, even if this means placing your computer on a stack of books.  A plain background is best.  If you don’t have a solid color wall you can use, try different virtual backgrounds, but be careful as many create a halo effect or make you look like a talking head; and of course, you should not use a comical background.   When talking, avoid extraneous movement.  Moving around can be distracting, and takes you closer to, and farther away from, the microphone.  You must also make sure you have enough bandwidth, and make sure other members of your household or office know you cannot be interrupted. 

All of the panelists noted that attorneys need to ensure that all chimes or alert notifications on their devices, and any nearby devices, are turned off  – the court does not want to hear a “ding” every time you get an email or text.  As for attire, business casual is not appropriate, again, you are still “in court”, and should dress like it, from top to bottom.  (If, for example, you are told “all rise”, you don’t want anyone to see that you have shorts on.) Although the judges said they would rather have the attorneys stand when arguing, to replicate the in-court experience, Andy pointed out that this means you have to change positions, sitting when the other side is arguing and then standing when it is your turn, which requires changing your laptop’s location and angle so you should practice this a few times. You should ask the clerk before the argument what that particular panel prefers, sitting or standing.  Do not wear anything with a “busy” pattern or stripes, as these do not come across well on camera.  If you talk with your hands, or gestures are important to your argument, figure out the best distance you should be from the camera so your hands can be seen.  Finally, if you have co-counsel or a colleague with whom you want to be able to communicate, or who wants to be able to communicate with you, during the argument, give them your cell phone number or email and have a separate way to hear from them with immediate comments or suggestions, while remembering that must be done silently. 

Everyone agreed with the attorneys’ suggestion that, before the argument, you should do a moot court with a colleague using the technology platform the court will be using.  A moot court should now serve two functions –the traditional substantive review of your argument and answering possible questions, plus a technology review of how you are appearing and sounding, the best angle for the camera, lighting, etc.  And all panelists agreed the attorneys should do a practice run with the court clerk using the technology the attorney will be using, from the location they will be using, on the day of the argument.  A technology dry run with the court using an iPad from your home, when you plan to use a laptop in your office for the actual argument itself, will not be useful.  Most courts have recordings of their prior arguments available for review, so the attorney can also view these as part of their preparation.

In sum, courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.  Many of the kinks in the virtual argument process will be ironed out with experience, as everyone gets more familiar with the process – practice makes perfect.  In the meantime, we appreciate the tips from our panelists. 

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Jill Wheaton

Dykema Gossett

Jill Wheaton is a member of Dykema Gossett, resident in the Ann Arbor, Michigan office.  She is the chair of the firm’s nationwide Appellate Practice team.  Ms. Wheaton is a member of the Council of Appellate Lawyers Executive Board and a past Chair of the State Bar of Michigan Appellate Practice Section Council.