June 29, 2020 Judicial Division

Appellate Advocacy in the Age of COVID-19

By Hon. David K. Thomson, Santa Fe, NM

Coping with the COVID-19 pandemic has required all of us to be flexible and get creative in finding ways to maintain business as usual. Many people are working and schooling from home and opting to video call loved ones instead of visiting them in person. Nearly all businesses now offer curbside delivery, and we are all suddenly used to standing in line outside the grocery store with our masks on. We’re all becoming quickly accustomed to a new way of doing things. The judiciary has hastily adapted its procedures to fit the needs of this time.

Courts all around the country are now conducting hearings over video conference. At the New Mexico Supreme Court, we have always required in-person attendance for oral arguments. However, when it was no longer safe to do that because of the coronavirus, we too were forced to adjust. During this time, we have held numerous remote oral arguments where attorneys appear over video conference to make their case. This public health crisis has taught us to appreciate how technology allows the judicial branch to continue functioning as normally as possible despite these uncertain times.

It’s not ideal, but we’ve been able to make it work. Still, interacting over video has its drawbacks and judges and attorneys alike are learning as we go about how to make court proceedings held over video as smooth, simple, and professional as possible.

In May, the Appellate Judges Conference sponsored a CLE called “Appellate Advocacy in the Age of COVID-19” to discuss the current style of courtroom proceedings and best practices during this time. A panel of judges and attorneys answered questions that participants posted questions in real time through the online chat feature. Below are some of the highlights from that discussion.

Q:  What should litigants think about when it comes to appearing in front of a judge over video?

A:  As much as possible, lawyers should treat these matters in the same way that they would treat in-person appearances. Even if the hearing or argument is over video, a judge may notice some of the same things that would be taboo in a courtroom. The panelists advised paying attention to the small stuff. For example, stand up when it is appropriate to do so, wear professional courtroom attire, and do not eat in front of the camera.

Q:  Do judges foresee video arguments becoming a permanent option for court proceedings that will be available after the pandemic has subsided?

A:  In the long run, it is unlikely that video arguments will replace in-person arguments. However, now that more courts are better equipped to hold hearings over video, it will probably remain an option for emergency circumstances or in other instances where a litigant cannot be physically present.

Q:  How does the United States Supreme Court’s experience with audio-only remote arguments inform how the panel views the issue of remote oral arguments?

A:  Overall, the United States Supreme Court has been fairly successful at conducting remote oral arguments over phone. We think this is due to its very orderly way of conducting arguments. The Chief Justice allows each justice to ask questions one at a time in order of seniority. The attorneys then have a fixed amount of time to respond to each question, and the time limit is strictly enforced. The orderliness of the arguments seems to have mitigated, at least to a degree, the inherently choppy nature of remote proceedings and the trouble of the attorneys talking over the justices.

Q: Do appellate courts allow attorneys more time to make their arguments when oral arguments are held over video?

Because of technical issues such as time delay or connectivity problems, many courts are allowing attorneys more time to make and finish their arguments.

Q: Will remote proceedings be made available to the public?

Remote oral arguments should always accommodate the public and the press.

It is up to each court to make sure there is sufficient means for the public to access court proceedings. This could mean streaming an oral argument on YouTube or a local news channel or posting the audio from a hearing on the court’s website.

When it comes to remote arguments, here are some key tips for attorneys:

  1. Prior to argument, make sure you have all the platform and login information from the court.
  2. Ask what the court’s backup plan is should the original platform fail. For instance, is there a number you should call if you get cut-off?
  3. Be intentional about where you place your camera. Think about your background and the lighting in your room.
  4. Remember, it is oral advocacy in a different format. Even though you might not be in Court, act and prepare like you are.
  5. Public access is crucial.

Justice David K. Thomson

Associate Justice, Supreme Court of New Mexico