With Covid-19 infection rates on the rise, trial and appellate courts are increasingly holding oral arguments on virtual platforms, and this trend will continue into 2021.
Learning and implementing best practices is key for participants. As a retired appellate judge and a practicing litigator, we offer different perspectives and some takeaways. We both agree that virtual environments invite Murphy’s Law, but if you are prepared and patient, virtual arguments can be successful and informative.
The Judge’s Perspective
For the judge who is accustomed to walking into a courtroom where everything already is already set up, the judge or the law clerks may now have to set up the technology. Even if this is handled by court IT staff, the judge still should have some basic familiarity with the system in case something happens during oral argument.
Functions like turning on the camera or muting the microphone will come easily to some judges but might require advance practice if the judge is not tech savvy. On multi-judge panels, care should be exercised in using chat functions to communicate during oral argument. It is easy to make what should be a private communication public.
Judges, like lawyers, should consider issues such as lighting, computer background, and the quality of the sound well in advance of argument. Judges are not used to staring at themselves on camera but once you have done it, you suddenly realize how awkward it can be when you are seated too far away or too close to the screen.
Many courts are only providing electronic copies of case materials and that means the bench may not have critical documents available in paper form during argument. It is distracting to look for documents in electronic repositories while simultaneously conducting oral argument.
Judges should prepare by either printing out critical documents, learning how to open documents on one screen while conducting argument on another, or by taking sufficiently detailed notes. It is not so easy to simply turn to the relevant pages in a multi-volume record in this electronic age.
Finally, and perhaps most important, judges should exercise even more patience than usual. Technology, while a helpful tool, is not perfect. Despite all the preparation, things unexpectedly go wrong: Computers crash for no apparent reason; lawyers are unable to sign on even when they have tested the links. Sure, this should not happen but when it does, wait for the tech issue to be solved and then carry on.
The Litigator’s Perspective
Learn which virtual platform the court uses and become familiar with it. If possible, hold a practice argument with a colleague over the virtual platform.
Set up your room in advance. Find a quiet, enclosed space, and lock the door. Create a makeshift lectern and position your camera at eye level. Stand if you can—it mimics an in-person argument and helps open your diaphragm. If you cannot stand, be sure the court can see you.
Log in at least 15 minutes early to ensure your connection and audio are working. Open an electronic stopwatch on your screen to keep track of time.
Side lighting or front lighting is best. Avoid backlighting; it creates a shadow. Ensure your background is distraction-free. Position materials you may need during argument within arm’s reach.
Use a headset or headphones with a built-in microphone. This promotes clarity in your speech by reducing background noise in the room.
Maintain eye contact with the camera while arguing. This makes it appear as if you are looking directly at the judge. When your adversary is arguing, mute your microphone and watch the judge, not the adversary. You will observe the judge’s reactions to your adversary’s presentation, which may inform what you say next.
Always have a backup plan if your internet or computer crashes. Most courts offer a dial-in option in addition to a virtual interface. Print out the phone number in advance. Turn your cell phone off to avoid distractions, but keep it and the phone number nearby in case of connectivity issues.
Speak more slowly than normally. Even if your connection is good, the judge’s may not be. Slowing down reduces the likelihood the judge will miss something. It also leaves breathing room between sentences should the judge have a question.
Place the judge’s image on a readily observable area of your screen. If the judge’s audio drops, your only clue might be the judge’s frantic wave of a hand.
Be prepared to argue uninterrupted. Some judges will be less likely to ask questions during virtual arguments.
And, of course, dress the part. The argument may be virtual, but the stakes are just as real.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Hon. Rosalyn Richter is senior counsel at Arnold & Porter and an adjunct professor at Columbia Law School. She served as an associate justice in the Appellate Division of the New York Supreme Court, First Department and began her career as executive director for Lambda Legal Defense & Education Fund before joining the Brooklyn District Attorney’s Office in the Appeals Bureau.
Jake R. Miller is a senior associate at Arnold & Porter who represents consumer product manufacturers, energy companies, and financial institutions in complex commercial litigation, with an emphasis on consumer class actions and product liability litigation. He also spent time as a prosecutor at the Los Angeles City Attorney’s Office.