REMOTE ORAL ARGUMENTS IN THE AGE OF CORONAVIRUS: A BLIP ON THE SCREEN OR A PERMANENT FIXTURE?

• Author: Mcgaughey, Margaret D.

In March 2020, most oral arguments in state and federal appellate courts were as they always had been: in person. By mid-March, COVID-19 struck and courts were faced with the difficult decision of how to balance on one hand, the need for advocates to plead their cases and the public's right of access to the courts, and on the other, the health risks of in-person arguments. Some courts, the United States Supreme Court among them, chose to hear arguments by telephone conference only. Others opted for audio-video arguments using such platforms as Zoom or Microsoft Teams. Still other courts used a combination of audio-only and audio-visual arguments. For judges and lawyers alike, this was an unanticipated and occasionally unsettling experiment.

This article is the sequel to "May It Please the Court or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." (1) The follow-up describes the approaches to remote oral arguments that have been taken by four appellate courts: the Supreme Court, the United States Court of Appeals for the First Circuit, and the Supreme Judicial Courts of Maine and Massachusetts. Telephone interviews were conducted with many of the same jurists who were interviewed for the first article. One of them is an Associate Justice of the Supreme Court. (2) Seven of the jurists sit on the First Circuit. (3) Four are current or former justices of the highest courts of Maine (4) and Massachusetts. (5) Interviews were also conducted of five lawyers who were among the first to present remote arguments in their respective courts. (6) The purpose of the interviews was to explore the reactions of judges and lawyers to remote arguments, to understand how their preparation and performance differed, to identify the costs and benefits of alternatives to in-person arguments, and to offer suggestions for how to avoid the pitfalls of remote presentations and, instead, make them as effective as possible. (7)

1. HOW VARIOUS COURTS HAVE ADAPTED

   1. Supreme Court

      In response to health concerns surrounding COVID-19, the Supreme Court established a model that some other courts have followed. (8) For its ten-case May 2020 term, the Court opted for telephone conferences, in part out of concern regarding the security of audio-visual platforms. (9) The question was not the security of the exchanges between the Court and the lawyers because, for the first time, Supreme Court arguments were livestreamed. Rather, at issue was the prospect of hacking internal Court communications. There was also a fear that static or other external influences could disrupt the proceedings.

      Each Justice was allotted a specific number of minutes to ask questions and was told in advance what that timing would be. Following the relatively new custom of allowing lawyers two minutes to argue without interruption, (10) the Justices each used their allotted time to ask questions in order of seniority, with Chief Justice John G. Roberts going first. If time remained, or if one Justice had not used the permitted time, additional questions could be asked, again according to seniority. Lawyers who had reserved rebuttal time were then allowed a summation.

      The Justices were not physically together for the arguments. Justice Stephen G. Breyer, for example, was in his home in Massachusetts. The late Justice Ruth Bader Ginsburg participated from her hospital bed. (11) In an effort to make sure the arguments proceeded smoothly, a member of the Court's IT staff monitored them remotely.

      Justice Breyer said he did not find that the number of minutes given to him to pose questions was frustrating. Rather, he saw as a strong point of the Court's protocol that it required the Justices "to focus on our questions and to be succinct... and to listen carefully to what the responses were." The protocol, in combination with the audio-only format, "required considerable concentration, perhaps more than normal, and I think that was a good thing." Having a designated amount of time for questions also encouraged more participation by all members of the Court. (12) It seemed to Justice Breyer that for the lawyers, the protocol produced shorter, crisper, more succinct answers.

      Justice Breyer also saw negatives in this format. His experience is that, done well, oral argument becomes a conversation. He pointed out that when Judge Learned Hand helped to design the courtroom in the Second Circuit, the bench was placed almost at eye level with the lawyers "to entice the lawyer into a conversation where they are both focusing on the legal problem and not just the client." (13) A significant loss in the audio-only format was the absence of eye contact. In in-person arguments, looking at other members of the Court can help the Justices identify what is bothering one other, which can be productive during the argument itself, in conference, or both. The protocol also made it more difficult to follow up on another Justice's questions. For Justice Breyer, who has always enjoyed oral argument, one distinct negative in the remote format is that "there rarely is a light moment."

      Notwithstanding these negatives, Justice Breyer believed there will be no long-term impact on the administration of justice because oral argument is "a very small part of the entire proceeding." (14) Oral argument can help to shape the discussion, in part because the lawyers know the case more thoroughly than the Justices do. If the remote format results in increased focus by Justices and lawyers on each question and answer, the significance of oral argument could increase. The primary persuasion, however, takes place in the briefs and in the end, what matters is the way an opinion is written, which "will affect tens or hundreds of millions of people who are not in the courtroom." Whether remote arguments will continue after COVID-19 abates may be a matter for the Court's discussion. (15)

   2. First Circuit

      Although by March 2020 Boston had become a hotbed of COVID-19, the First Circuit was able to complete its March term without incident or illness. Lacking the tradition and the technology for online arguments, the court took on submission most of the cases that had been scheduled for argument in April and May in order to put the necessary changes in place. More complex cases that the judges thought needed oral argument were put over to a later term.

      By June, the First Circuit began hearing oral arguments either of two ways: some audio-only and others audio-visual, using the platform Microsoft Teams (Teams), which the Executive Offices of the United States Courts recommended. The choice of format was made by the panel hearing that day's cases. Judge Sandra L. Lynch, (16) for example, had retreated to a vacation home where she had a malfunctioning iPad, no broadband internet, and remote access only by a hotspot that produced unreliable connections. She participated only in telephone conference arguments, one of which was heard en banc.

      Although the First Circuit's IT and clerk staffs are lean in comparison to other courts, they undertook to train both judges and lawyers in the use of audio and audio-visual technology. Approximately a week before the first scheduled argument, the courtroom deputy held by telephone conference a general orientation session for all lawyers who would argue on a given day. This included a description of the protocol to be followed and directions for such details as muting the microphone when not arguing. The courtroom deputy also practiced the technology with the lawyers.

      On argument day, the lawyers were told to connect thirty minutes before their scheduled time. After the lawyers were on the line, the judges announced that they had joined. The courtroom deputy then began the proceeding with a modified call similar to what the Supreme Court used for its remote arguments. Although the tradition is for the deputy to direct that "all rise" and then say, "draw near, give your attendance and you shall be heard," the phrases "all rise" and "draw near" were omitted.

      The First Circuit's protocol for the audio-only arguments was modeled after the Supreme Court's. Judge William J. Kayatta (17) and Judge David J. Barron (18) reported that, knowing they would have only a fixed amount of time to ask questions, they tended to formulate them ahead of time. Although opening summations have not been the custom in the First Circuit, each lawyer was given a brief period to argue without interruption. The judges then divided the remaining time evenly among themselves and posed questions in order of seniority. Whichever judge was presiding orchestrated the transition from one judge to another, in part so that advocates who were unfamiliar with the judges' voices would know who they were addressing. The presiding judge also kept time, a function generally performed by the courtroom deputy.

      A member of the First Circuit's IT staff monitored the arguments, as did the courtroom deputy. The arguments could be heard on YouTube with a thirty-second delay. For the first day's arguments, fifty-two people listened by YouTube.

      The clerk's office provided similar pre-argument training to the lawyers who argued by Teams. Julia Lipez's (19) Department of Justice computer could not interface with the First Circuit's Teams application, so she needed to argue from home, using her personal desktop computer. The courtroom deputy held a separate session with her and others who had similar problems to ensure that Teams worked on their devices. (20)

      During the Teams arguments, the judges each appeared individually on a screen. Only the arguing lawyer was visible on another screen and the audio of the non-arguing lawyer was muted. According to Chief Judge Jeffrey R. Howard, (21) who presided over both audio-only and audio-visual arguments, the Teams arguments were generally less strictly orchestrated than the telephone conference presentations and resembled more closely an in-person argument. He and Judge...