Telephonic Hearings in a Pandemic

For weeks, in much of the country, lawyers have been under stay-at-home orders, where they have juggled ongoing legal work, family, kids, client needs, and their own health and well-being. It has not been easy. And despite the unprecedented disruptions, litigation does not stop. That means hearings have also not ceased entirely.

Federal courts around the country have had to quickly adapt to the disruption caused by the COVID-19 pandemic. Here in the Central District of California, judges, law clerks, and court staff are largely working remotely. The federal courthouse is closed to the general public but remains open for essential proceedings, including criminal and emergency civil matters. That said, many, but not all, civil deadlines and motion calendars have been continued. There are still occasions where civil hearings must be held, and those are going forward telephonically. Here are some tips to master oral argument in this unique setting during and after the pandemic.

Logistics, Logistics, Logistics

First priority: be clear about the logistics. Due to the COVID-19 pandemic, many federal judges, including myself, have modified our procedures for civil matters. These modified procedures, along with general orders of the district that set out special procedures during the pandemic, are available on the district’s public website. Read them carefully. In my chambers, a few days before the hearing, my courtroom deputy will email all counsel of record with a secure conference call number and access code. If your judge notifies you that the court intends to hold a telephonic hearing and you have not received the dial-in information, contact the judge’s courtroom deputy via the chambers email (also listed on the website) to seek clarification.

Next, a telephonic court hearing is not at all like the many Zoom meetings you likely have attended during this time. There will not be video capability, just audio. Sorry, you cannot FaceTime with the court. Telephonic hearings are recorded, however. Either a court reporter will be on the line to take down the hearing or, in some instances, the judge may use an XTR recording system to make a record of the proceeding. In either case, the parties can later order a full transcript of the proceedings just as if they had been in the courtroom.

Before the judge joins the line, the courtroom deputy will confirm who is present on the call for each party, will call the case number and caption name, and will ask the parties to state their appearances. Typically, the court will then acknowledge the parties, confirm the nature of the proceedings (e.g., motion hearing, ex parte application, preliminary injunctions hearing), and ask the moving party to address the court first.

There are no visual cues to guide the discussion, so it can be challenging to know when to speak or when an objection or question may be interposed. Let the judge be the conductor. When I have telephonic hearings, I advise the attorneys to address all their comments only to the court—not each other. In addition, I let the lawyers know that I will hear out each side fully and will let opposing counsel know when they can speak.

For many lawyers, waiting to speak is the hardest part of a telephonic hearing. They want to jump in, interrupt, and object, especially if they believe their opponent has mischaracterized a fact or legal authority in their presentation to the court. Hold your fire. Interrupting while the opposing party is addressing the court annoys the judge and makes for a messy transcript. It also makes the person who interrupts look rude and unprofessional.

Finally, perhaps the most important logistical tip of all: plan ahead to be in a quiet place for the telephonic hearing. Lawyers sometimes try to participate by telephone while driving, or walking outside, or even from an airport lounge (remember when that was possible?). None of these situations makes for an effective telephonic hearing. The ambient noise is distracting and muddies the recording. Even if you are in a quiet home office for the hearing, remember to mute your line when you are not speaking. It avoids having the transcript include the sound of rustling papers, dogs barking, or your kids wanting to show you their artwork.

Prepare Just as if the Hearing Were in Person

To be effective in a telephonic hearing, prepare just as diligently and thoroughly as if you were appearing in person. Outline the key points of your argument in advance. But do not read from a prepared script. If you have out-of-district authorities that are essential to your argument, even if you included these as an appendix to your briefs, consider sending copies in advance of the argument to the chambers email and opposing counsel. Similarly, if you have graphics, charts, or other essential visual evidence that you plan to use in your argument, provide copies to the court before the hearing.

If you have not previously argued before this judge, do your best to get as much information as possible about his or her hearing style. Ask around by email if your colleagues have experience with the judge and solicit any tips they might offer. Use electronic legal databases to research how the judge has ruled on similar motions in the past.

If it is an especially important motion, you might want to try to moot the argument over FaceTime or Zoom with a trusted colleague to get feedback. If you have time to moot your argument, remember it is always helpful to prepare both sides of the issue. That way, you can anticipate the weaknesses in your side of the argument and be ready to address them on the call. This level of preparation is no different than if you were appearing in person.

Argue as if You Were in the Courtroom

Ask the court at the start of your argument if there are specific issues or questions that the court wants you to address. Start there. Answer the court’s questions as directly as you can. If a point is a clear loser, concede as much and move on to stronger arguments. Use your time carefully. Indeed, the court may advise the parties at the beginning that they have only a specified amount of time for their argument. If so, the moving party needs to remember to reserve time for rebuttal.

Because you should not interrupt, be sure to take notes when opposing counsel is speaking so that when the court turns to your side to respond, you know precisely where you may need to correct the factual record or distinguish a legal authority. Remember to order a transcript of the proceedings.

Finally, even the best made plans can go awry. If circumstances are such that you really have not been able to adequately prepare for the hearing, seek a continuance. Reach out to opposing counsel and try to get stipulation for a continuance. For truly emergency situations, an ex parte application to continue the hearing may be the best approach. Carefully review the local rules on the format and procedures for ex parte applications. Lawyers and judges alike are working under difficult circumstances, both personal and professional these days. Better to seek a continuance than to perform poorly for your client because you were unable to adequately prepare.

Pandemic or no pandemic, litigation goes on. Despite disruptions and much uncertainty, with thoughtful preparation you can still bring your best advocacy skills to the fore—even if it is not in the courtroom but on the telephone.