The speed with which our courts have adjusted to the COVID-19 pandemic is truly remarkable. From the court personnel themselves engaging in work from home to rescheduling and adjusting based on the emergency orders from Gov. Mike Dewine and the Ohio Supreme Court, there has been a lot of effort to keep the wheels of justice moving.
Appellate courts have had to figure out what oral argument looks like in the age of social distancing. The Ohio Supreme Court has engaged in video oral arguments (first by GoToMeeting, then by Zoom). I’ll have more to say about video oral arguments in a later post — they are achieving their general objectives, but attorneys are not taking advantage of some opportunities to make sure they present themselves in the best light.
The Second District Court of Appeals (my hometown district), like the U.S. Supreme Court, is conducting oral arguments by telephone. I had my first remote oral argument on May 19, 2020. The argument itself went okay, but preparation and making sure that I was ready and comfortable to present took some forethought. Here was my strategy:
Recreate the ideal physical speaking arrangement
I’ve never given a seated oral argument before. I knew I did not want to be seated while on the telephone argument, but I do not have an appropriate platform for the materials I would like to have in front of me. What to do?
I ordered a podium/lectern from Amazon (link here). I recreated the traditional oral argument position. I was able to have my written materials in front of me and accessible, and project my voice outward like I would in a traditional courtroom. It worked well.
Find my best phone option
After the introduction of Apple AirPods, I have hated holding my phone up to my head. I didn’t plan on doing that for oral argument — but I did have a question: use a nice bluetooth speaker that acts as a speakerphone, or use the AirPods?
One of the things I hate about Zoom calls is there’s usually at least one unmuted person causing echo. This was a fear for me being on a speakerphone call with at least four other participants (three judges, one opposing counsel). I went with the AirPods. I could hear the other participants well, and I hope that I was also understood clearly.
Control the room
While my wife and I don’t have any children to contend with, we do have a dog who likes to bark at the Amazon delivery trucks and a cat that likes to jump on the back of whatever furniture you are near. So obviously, the office door stayed closed.
I also have a relatively loud furnace. I made sure it was off during the 45 minutes of my call just so that the sound of blowing air did not distract me or any other participants on the call.
For those of you that live in loud neighborhoods, this may be a bit of a challenge. But it is worth giving some thought to.
Suit or no suit?
We had a few minutes before the argument started and one of the judges jokingly asked if everyone was in a suit and tie. I actually did put on a suit and dress shirt that day (in contrast to the casual clothes I had been wearing the previous two months). I put on my black formal shoes. My goal was to make it feel like the other oral arguments, but somehow I didn’t find it necessary to put on a tie. It was a little like “suiting up” for battle — I was doing this in the clothes I normally did.
So how did it go?
The main issue at a telephonic oral argument is that you do not have a visual to recognize when a judge wants to interrupt and ask a question. They make an effort to pause between sentences, but don’t always get it in on time. The same issue applies to the judges themselves — two judges sometimes started to ask a question at the same time.
One thing that surprised me is that I found myself wandering away from the podium while I was speaking. This is not something I would be able to do in most appellate courtrooms — you would either be walking away from the microphone, or the judges would wonder what the end game was. It felt freeing, but was really only of benefit to me.
I still think there is an element of oral argument that’s lost in interpreting the judge’s or counsel’s facial expressions during oral argument. But I’m not sure that a video oral argument captures them either. My takeaways from this experience are that it is worthwhile to think about what makes you the most comfortable you can be for oral argument.