Tips for Video Appellate Argument (and How It’s Different)

Appellate argument by video became the norm during COVID-19. And even as courts have begun to permit in-person appellate argument, it has remained a popular method of presenting oral argument. As the American Academy of Appellate Lawyers (AAAL) observes in its guide, Remote Video Argument: Suggestions for Arguing Counsel, “appellate lawyers should treat video argument as a long-term and evolving condition” and “devote both time and resources to present video argument effectively.”

Argument by video poses new considerations and challenges and is essentially an entirely new skill and art form. As the AAAL puts it, “[t]reating remote video argument as an in-person argument with a camera risks ineffectiveness and embarrassment. Video argument interposes both a camera and an app between advocate and the court, creating a new medium.” Id.

Many of those challenges involve the video medium itself: How do you look and present over video? What kind of impression are you making? Are there things you should do on video that you would not do when presenting in person?

First Impressions

First impressions happen within milliseconds, and most judgments are made based on visual cues, not spoken words. In the virtual world, the audience’s impression of you as a speaker depends on the following:

• Framing: Are you ideally framed on the screen, centered, with the lens at eye height and appropriately distanced? Or are you off-center, with the lens looking down on you and uncomfortably close?
• Lighting: Is your face/image well lit and easy to distinguish and view? Or are you shrouded in uneven lighting and shadows? 
• Posture: Are you upright, open, and squared to the lens? Or are you stooped over your lens, angling off casually to one side?
• Eye Gaze: Are you focused on the lens and thus your audience / the moment? Or are you looking off at another screen? (It doesn’t matter to the audience what you are looking at; what matters is that you appear distracted, not focused on them, not prepared, or perhaps inconsiderate.)

Trustworthiness

Conveying trustworthiness in short periods of time is greatly influenced by nonverbal cues. It is a primary communication theme within nonverbal communication and influence because if audience members do not trust you, they are less likely to believe what you are saying or allow themselves to be influenced by you. 

The main nonverbal elements of conveying trustworthiness over video are the following: 

• Facial Expression Dynamics: Congruently align your facial expressions with the intention behind what you say. If you are happy, ensure that your facial expressions align with that emotion. If you are frustrated or angry, ensure that your facial expression dynamics reflect that appropriately. When we say one thing but look a different way, we cause confusion and doubt for our audience. 
• Gestures: Human hands are a significant piece of our tool kit as effective communicators. Not using our gestures at all leaves opportunities for emphasis, clarity, and displays of both authority and openness/trustworthiness on the table. We want to involve our hands alongside what we are sharing—with open palm gestures supporting displays of genuine quality, openness, and honesty. Finger-pointing is related to aggression, as are tight fists. Playing around with gesture vocabulary can greatly enhance our impact as speakers. 
• Active Listening: Showing someone you are listening via head movements and eye gaze is an indicator of trust building. People want to feel seen and heard as a core part of building a relationship. Particularly on video, individuals must be aware of the way they are presenting as listeners as well as speakers. 

Authority 

Communicating with authority on video requires a strong awareness of the following cues: 

• Posture: Having an upright and open posture gives an impression of confidence and authority. The opposite—having a stooped or diminutive posture—makes us appear smaller, can reduce our own self-perceptions of confidence, and certainly reduces our overall impression of authority.
• Eye Gaze: Particularly when we are speaking/presenting, looking directly into the lens is a strong indicator of confidence. The opposite (appearing shifty-eyed or looking away) can indicate a lack of knowledge/certainty and confidence. 
• Face Touching: Face-touching behaviors such as scratching the nose and covering the mouth with the hand are low-authority markers and should be avoided.

All of the considerations above should be assessed before you present argument by video. Practice over Zoom or some other remote video method before the Big Day. Get comfortable presenting over video by appearing as a guest on podcasts or hosting your own. (Even if a podcast is only audio, it often takes place by video rather than telephone.)