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

Flying Blind – Tips for an Audio-Only Oral Argument

By L. Steven Emmert

It’s comforting. The lectern in your usual appellate court represents the familiar, a second home for appellate advocates. It’s as normal-feeling as the driver’s seat in your car.

And then a pandemic goes and scatters jurists and advocates, forcing appellate courts to turn to alternative technologies to process appeals. Many of those courts have begun to convene audiovisual arguments, giving advocates the chance to argue almost normally. It’s not the same dynamic as standing behind that lectern, but you can still see and hear every member of the panel or en banc court. You can make some semblance of eye contact with the judge who asked you the killer question. After a while, the new normal starts to feel vaguely like the old one.

Some appellate courts have turned to a previous generation’s tech, and are hearing arguments by conference call – the old-fashioned phone line.

Some appellate courts have turned to a previous generation’s tech, and are hearing arguments by conference call – the old-fashioned phone line.

Chris Ryan via Getty Images

But not all appellate courts are quite so accommodating (or, in fairness, not so digitally equipped). Some of them have turned to a previous generation’s tech, and are hearing arguments by conference call – the old-fashioned phone line. If this describes your appellate home, these tips are for you. Some of these should be obvious; others might not have occurred to you before.

Starting limitations

The biggest drawback of an audio-only setup is obvious: You won’t get any nonverbal feedback. Experienced advocates know to read jurists’ facial expressions and body language – for example, when two members of a court lean forward when your opponent says something significant. There’s no way to pick up on this when you can’t see the court. While the ability to react generally makes for a better oral argument, there’s no way to adapt given this limitation.

Second, know that your gestures are useless; no one can see you. Great speakers understand the key role that their nonverbal communications can have, from a sweep of the arm to indicate scope, to the simple act of removing eyeglasses before making an important point. This, too, is missing from a telephonic argument. You must paint your pictures purely with words.

Connection issues

If your court’s conferencing facility requires that you dial in, print out (or at least write down) the phone number and any required access code. That way, if you get disconnected, you can quickly redial and resume the argument. If it’s the other way around, and the court is calling you, ensure that court staff have multiple ways to call you, in case you’re dropped. You should make these arrangements before the day of your argument.

It’s best not to use a cell phone for your argument; use a land line if you can. There are better uses for your cell, as noted below. You may choose to use the speaker feature or a headset if you want the freedom to move around. That’s a matter of personal preference, but remember that the sound quality the court will receive will be different with a speakerphone. For that reason, some courts forbid your arguing through a speaker; there, you’ll need to use a headset or handset. Again, ask in advance of your argument day.

Pick the right environment

You’ll need to decide whether to give your argument from a home office – even an improvised one – or from your place of business. Each has risks, in the form of distracting sounds in what must be an absolutely quiet environment. If you stay at home, you have to worry about other family members, about the dog’s deciding that it’s a good time to go for a walk, even about whether your next-door neighbor will choose your argument time to fire up his leaf blower.

The office is usually a more manageable space, especially if most of your colleagues are working remotely. Even so, you need to screen yourself from noises such as a printer or ringing phone lines in nearby offices. Closing your office door may or may not suffice to mute those sounds. You're accustomed to arguing in a forced-quiet zone, so you need to be proactive and anticipate sounds that might butt into the virtual courtroom.

During your call

Limiting noise

Even when you’re “on,” you need to be aware of sounds. The most obvious is the shuffling of papers as you move from page to page in your outline. This won’t be an adjustment if you argue from a laptop; but if you use a three-ring binder for your arguments, as I do, you should rethink that, as the pages are likely too close to your phone to escape detection and amplification. For extra precaution, consider using the first page of each in a series of legal pads for your notes; you can pick up and replace a pad more quietly than you can with a single sheet.

If you have to use a cell phone, remember not to compose text messages or e-mails when it’s the Bad Guy’s turn to argue. Those clicks can come through and will be highly distracting. The same thing applies to your office keyboard; don’t type during the argument. As with when you’re driving, It Can Wait.

The mute button is your friend. Whenever it isn’t your turn to speak, use it. The corollary is, when it becomes your turn, you must remember to disengage the mute function. If you forget, the court will hear dead air, no matter how polished your speech is.

Timing your argument

In your old-reliable courtroom, the lectern probably contains some form of timer that you can see, with either a digital display, a set of lights, or both. In an audio-only argument, you must be your own timer. Your cell phone probably has a function like that.

Two caveats: You must remember to hit “start” when you begin; and you must disable any power-saving feature that might otherwise cause the screen to go into sleep mode after a minute or so of inactivity. You don’t need the distraction of having to continually keep the screen “awake.”

Dealing with questions

In a courtroom setting, experienced advocates can often sense that a jurist is about to speak up to ask a question. Those advocates usually pause for a couple of beats to allow the questioner to interject without breaking up a sentence. You obviously won’t get that nonverbal feedback over a phone line.

This means that, even more than in a courtroom setting, there will be instances where a judge starts to ask a question as you continue to talk. This happens in courtrooms, too; but it’s more likely in an audio-only argument, and usually continues for about a second longer. The best practice here is to build in several more short pauses in your speech. This can be painful if you have a rapid-fire speaking delivery, but it’s a wise adaptation to this new environment.

One last point, based on my experience in Virginia: I received far fewer questions from the court during my telephonic arguments (likewise in arguments I heard by other lawyers who were ahead of me on the docket) than I was accustomed to receiving during my in-person appearances. There may be something about the audio-only dynamic that suppresses such questions.

This may or may not be true in your court, but be prepared for the possibility. This means that your argument may be more script-based, as you may not experience the give-and-take that’s typical of a hot bench.

A horror story

A clerk told me that during a recent argument, one dial-in caller put the call on hold. Alas, her office’s hold function played music until the speaker returned. This meant that the court and the lawyer arguing the appeal had to endure background music for a few minutes until the unfortunate counsel picked up the line again. Don’t let this be you.

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Steve Emmert

Sykes, Bourdon, Ahern & Levy, Virginia Beach

Steve Emmert, a CAL executive board member, practices appellate law at Sykes, Bourdon, Ahern & Levy in Virginia Beach, Virginia. He prepared these tips after arguing three telephonic appeals to the Supreme Court of that state on April 15-16, 2020. In addition to his own experience, he drew on generous guidance from a deputy clerk of that court and a law clerk to one of the justices; both of these “angels” chose to remain anonymous.