In March, we had only hours to transition from in-person teaching and law practice to remote options. As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms. Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work. I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online. (If you could not attend, you can view asynchronous postings here: https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.) Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend.
Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.” The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward. As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.” Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues–2020 Special Edition 1 (ABA May 27, 2020). Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances. In other words, be prepared and yes, wear pants.
Part of our preparation for oral argument today should include a test run of our technology. Whenever possible, appellate practitioners should do moot courts before oral arguments. Now, we should make our moot courts a test of both online systems and legal arguments. Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020–the clerks and judges are already familiar with some remote platforms. Id. They expect us to be familiar with the platforms as well. In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation.
We should also be as professional as possible in every detail of our online appearances. Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance. The ABA panel stressed smaller points as well. For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking. Id. at 2. Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level. The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument. Id. Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking. Id. Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.
We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves. For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.” Id. at 3. Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.