Confessions from an Electronic Platform 2022: Appellate Argument

• Publication year: 2023
• Author: Written by Justice Eileen C. Moore

CONFESSIONS FROM AN ELECTRONIC PLATFORM 2022: APPELLATE ARGUMENT

Written by Justice Eileen C. Moore^*

Just because one can argue an appeal electronically doesn't mean one should. The wiser option may be to appear in person and make the argument.

WHEN THERE ARE NO TECHNICAL PROBLEMS

Even when an electronic argument proceeds as planned and no one forgets to unmute, there's something lacking. I think it's that we are so used to following arguments by both listening and watching people's lips move as well as observing body language. But with the screens, either we can't see counsel's lips that well or counsel can't see ours when we ask a question. Thus, a justice might ask a question and counsel looks around to figure out what just happened. Often the question has to be repeated. Repeating a question is, of course, not a problem, but I have noticed that we tend to ask fewer questions during electronic arguments. It's probably so we don't take counsel's argument off course.

And there's more. Every so often, counsel's cat walks across the screen. Or a dog barks. Or a baby cries. While I'm thinking, "how adorable," I'm not thinking about counsel's argument. Such distractions are cute and part of life, but they divert our attention from the case at hand. Also distracting, and sometimes disturbing, are inappropriate backgrounds, posters, and pictures.

WHEN THERE ARE TECHNICAL PROBLEMS

In addition to all of the above, it's much worse when there's some technical problem. And it is very common for something to go wrong with the electronics. Sometimes it's on the court's end, but it's usually on counsel's end. Counsel's screen freezes in mid-sentence. The argument may or may not continue during the freezing. Counsel might reach for something and doesn't speak directly into the microphone. Or, something happens and counsel is disconnected. Sometimes, the audio on counsel's computer doesn't work...