The coronavirus pandemic has brought about many questions over how previously routine, in-person tasks can now be handled remotely. For appellate litigators, one major question will no doubt be how to handle oral arguments via teleconference or videoconference. Appellate courts across the country have switched to remote arguments, and many have even eliminated the filing of physical paper briefs. Just a few days ago, Politico reported on the first arguments to take place via teleconference, noting that it was "kind of a mess" that was riddled with "beeps," "muddled voices," and "dropped calls."
Still, a remote oral argument is better than no argument at all, and skilled advocates can neutralize challenges with ample preparation. Here, we offer five key tips that empower attorneys to handle oral arguments in the age of coronavirus with grace and force.
- Know What to Expect.
The first thing attorneys with pending appeals and arguments should do is determine how the specific court is handling operations. You can do so by calling the clerk's office, consulting the court's website, and reaching out to other appellate counsel who practice in the same court.
Although courts across the country are issuing similar protocols, their various responses differ in key ways. For instance, after temporarily postponing all arguments, the Supreme Court has recently decided to hear oral arguments by teleconference in certain cases. The Second Circuit has similarly switched to teleconference arguments only, with parties receiving access instructions for each argument day. Parties also have the option to submit appeals on the briefs. Panels on the D.C. and Ninth Circuits have discretion to hear arguments by teleconference; postpone arguments; or decide cases on the briefs. Last week, the Fifth Circuit canceled several arguments at the last minute, indicating that each panel will now determine whether telephonic arguments are necessary. Further, the Fifth and Eighth Circuits, along with others, temporarily suspended the requirement of filing paper copies of electronically submitted briefs and appendices. And while the Fifth Circuit has emphasized that existing deadlines remain in place, others, like the Second Circuit, have tolled certain filing dates by 21 days.
If you have an appeal before a court that is currently winnowing argument time, investigate how you can emphasize to the panel the particular reasons why your case merits argument. And if argument will be done remotely, determine whether it will be by phone or video. And if the court uses new or foreign technology, seek permission to test it in advance.
Once you have the logistics nailed down, prepare accordingly. You may be in the comfort of your home, but that may mean that your space is more prone to disruptions from children, pets, and errant noise. Set up a clear and controlled workspace where you can focus. Decide whether you're going to use the speaker or a headset, and test the software in advance. Also consider your outfit in advance. For instance, perhaps you can balance out the discomfort of handling an argument telephonically with the comfort of not wearing shoes, as one attorney has recently confessed to doing in a remote argument. - Perform Moots in Similar Conditions.
Just as you would moot for an in-person argument at a lectern, before a bench of mock judges, calibrate your pandemic moots to reflect the real experience. If your argument will be done by video, run your moots that way so you're not self-conscious about seeing your face on the screen, or hearing audio feedback of your own voice. If possible, use the exact same software, in the very same room and setup where you plan to handle your actual argument.
Although it always helps to have the same number of mock judges on your panel as you would have on the court, it is particularly crucial in preparing for a remote argument. Mooting your argument before a three- or five-member panel, for instance, will give you a sense of how long to pause, how often to expect interruptions, and how best to avoid crosstalk and lag time. It will also give you a good sense of whether the setting you've chosen for the argument is optimal, and whether there are any hiccups in your technology. You may even want to run your moot in the same outfit you plan to wear to the real thing, to assess whether wearing pajamas (assuming the argument is telephonic) might give you more confidence and comfort during the experience. - Consider that Briefs May Be Read Electronically, Without the Benefit of Argument.
Because more and more courts are forgoing oral arguments and submission of paper briefs, it is crucial to prepare your briefs with the expectation that they will be read solely on a screen, and perhaps without oral argument. What does this mean? The fundamentals continue to apply--as we've noted before, prioritize readability, screen aesthetics, and utility. This refers to both style and substance. Avoid long sentences (those exceeding 40 words). Instead, opt for sentences that average 25 words or less. Similarly, avoid long paragraphs that comprise more than six sentences. To test whether your paragraphs are too long, scroll through and make sure that no one paragraph takes up the entire screen.
To further help your reader navigate, use clear headings as anchors. Consider using bullet point lists, graphics, exhibits, or other demonstratives for digestible summaries of key points that break up blocks of texts. Deploy italics instead of underlining because they offer helpful emphasis without impairing legibility or obscuring letters and punctuation.
Keep in mind that because the judges and law clerks may no longer receive paper submissions, they cannot necessarily annotate your briefs, or have your opening brief, reply brief, and excerpts of record open in front of them at the same time. Make it easier on them by using PDF bookmarks and internal hyperlinks, which will allow them to jump around your submissions. Also provide easy external navigation and use hyperlinks to as many sources as possible, including legal citations. As courts have different procedures and requirements for links, consult the specific court's rules before finalizing the brief. Whatever format you use, though, note that this makes it all the more crucial to check your citations and ensure that you are citing the correct source for each proposition. Any oversight may be revealed with just a single click.
Finally, keep things short. Even in the best of circumstances, lawyers do not have the luxury of assuming that judges have read their entire briefs, and that is even more the case during a pandemic, when judges are distracted by myriad other concerns. All this points to the importance of making your key points easy to find and easy to understand. Consider what one point you want the judges to take away from your brief, and then revise your brief until it's impossible to miss that point on a skim. - Slow Down and Prepare for Things to Go Wrong.
As a common saying in appellate circles goes, there are three oral arguments in every appeal: "the one you plan, the one you give, and the one you wish you had given." That is even more true with remote arguments. Because it will be much more difficult to assess whether the judges are receptive to your points--or whether they've even grasped them--slow down to make sure you are giving the panel time to process your statements and ask questions as they arise. Pausing also minimizes the chances that you will talk over or interrupt a judge as she begins to frame a question. Now, as ever, listening is a critical piece of argument. Without the body language cues afforded by an in-person court appearance, attorneys must listen extremely carefully to assess the sticking points. This means not just paying attention to the judges' words, but also the tone and inflection with which they pose their questions.
Further, slowing down also creates a buffer for technological glitches. If the call drops, for instance, pausing will give you that much more opportunity to catch it and correct it. And because resolving errors and reconnecting may eat up valuable time, prepare to be flexible and adapt to anything that arises. - Consider Adopting a Different Argument Style.
Stripped of the tools available in an in-person argument--body language, gestures, and facial expressions--you may consider tweaking your typical style to allow your tone and voice to do more of the talking. You might also consider introducing demonstratives at argument--either by holding it up in view of the camera or, as court technology permits, using a separate window or software--as they may serve as helpful visual aids that supplement your new inability to gesticulate.
Most of all, though, it is important to hone arguments to a few key kernels--two to three sentences, perhaps--that will allow you to use argument time efficiently to highlight the simple reasons why your client should prevail. Then, once you have those points, consider all the angles through which you may be able to pivot back to them regardless of where the panel leads you with its questioning. The fact that you are arguing over the phone does not give you free license to read a canned argument off of the page--if anything, it will require you to be more agile to deliver your key points effectively. This is all the more reason, though, to invest additional time into your preparation and make sure that you deliver the most zealous advocacy possible--shoes or no shoes. <\/ol>