Remote Oral Arguments Getting Tentative High Marks From Judges, Lawyers

There are anecdotal signs remote oral arguments remain a work in progress. At the conclusion of an oral argument that we listened to last week, U.S. Court of Appeals for the D.C. Circuit Judge Thomas Griffith thanked the two lawyers participating, saying judges “struggle with this less-than-perfect way of hearing argument.” Earlier in the hearing, judges temporarily had some difficulty hearing one another. The American Bar Association said it has no position on whether remote oral arguments are working effectively. The Supreme Court, which is doing some oral arguments via teleconference (see 2004130019), and multiple U.S. Circuit Courts didn't comment.

In some ways, arguing a copyright infringement case appeal this month before the 9th U.S Circuit Court of Appeals via Cisco Jabber video was even better than being there in person, said intellectual property lawyer Ryan Carreon of Higbee and Associates. The three judges all were close to their cameras, making their facial expressions and nonverbal cues easier to read, he said. And the clock was at eye level, making it easier to keep track of time, he said. Working out of Orange County, California, Carreon said he wishes some courts in other states would be more amenable to remote appearances and hearings, with New York being particularly reticent.

With practice, judges will interrupt each other less, which accounts for the vast majority of awkwardness, emailed Brian Boydston of Pick & Boydston, who was part of an oral argument held via conference call last week before the U.S. Court of Appeals for the D.C. Circuit (see 2004220015). Phoning in doesn't compromise oral argument much, he said. They have "long been very much something of a formality," because complex issues taking up hundreds of pages don't get hashed out in a 30-minute call. "I see no reason why this should not become the norm," he said.

Remote oral arguments are "better than shutting down our court system until we return to normal," said Arizona Superior Court Judge Christopher Whitten. "On that, everybody agrees.” Since April 1, his court system has restricted appearances to essentials like hearings that have a constitutional requirement they be in person, such as criminal case sentencings, while all other court activity is being conducted virtually, Whitten said. He said different judges often use different audio and video platforms, and sometimes in different ways, which isn't as good as having everyone in person. Not everyone has access to the needed hardware or software either, he said.

But such tech platforms also are offering more access to justice in some ways, allowing more people to attend short hearings remotely, Whitten said. For lawyers with busy daily calendars, it's easier to get from one courtroom to another remotely, he said. He said his court is using the GoToMeeting platform, but all platforms generally "operate about the same." On how well the remote approach is working, "if you ask 100 judges, you might get 200 answers," Whitten said. Confidence levels among judges varies widely, and most judges are self-taught in using such tech platforms, he said.

Whitten said the pandemic could make seating juries more challenging, with jury summonses likely netting lower yields. That could put civil cases "in the backseat for a little bit" with jurors likely sent to criminal and family cases, and tech innovation could allow semi-virtual civil trials, he said.

The transition to pandemic procedures hasn't been painless but less onerous than it could have been, Louisiana state Judicial District Judge Scott Schlegel told us. His court already had been doing online calendaring and pretrial video conferences, which was expanded to the entire judicial district with the pandemic, he said.

A chief challenge to remote video hearings and conferences is ensuring the court reporter has adequate bandwidth, Schlegel said. He had court staff do speed tests at home and talk to their providers or upgrade modems as needed. He said his court, in suburban New Orleans, is scheduled to be closed at least through May 4, and beyond then will still use video platforms for issues like motions for summary judgment to try to keep down traffic going to the courthouse at least until social distancing guidelines are eased. After the pandemic there might be some reversion to prior practices but not fully, he said. Legislative action in some states might be needed to allow courts to more permanently incorporate new forms of tech use, he said.