Mastering Remote Advocacy – Managing Challenges and Embracing Opportunities
In the wake of the COVID-19 we find ourselves embracing remote advocacy and the inherent unique challenges presented in connection with this new world. One major change is that many of our hearings will now be remote video hearings in courtrooms. A well-prepared attorney who is familiar with the mechanics and ground rules of navigating this new remote working environment will be armed with the tools they need to make their remote hearings highly effective.
Remote Oral Argument Series
Welcome to May It Please The Court: Oral Arguments in COVID-19 Times, a series of interviews with the appellate courts in California about how they are handling remote oral arguments. These video and written interviews were conducted by members of the CLA’s Committee on Appellate Courts to help practitioners navigate the new reality of remote oral arguments.
May It Please The Court: Oral Arguments in COVID-19 Times— Fourth District, Division Three
To find out how remote oral arguments are going in the Fourth Appellate District, Division Three under the COVID-19 emergency orders, Betsy Forbath, the Managing Attorney for the Fourth Appellate District, Division Three, was interviewed on May 8, 2020 by M.C. Sungaila from the Committee on Appellate Courts for the Litigation Section of the California Lawyers Association. Ms. Forbath’s responses are below:
1. The shelter-in-place orders started in California in mid-March. How did the Fourth District, Division Three initially respond?
The court closed the clerk’s filing window for in person filings to protect court employees. A filing drop box was placed in the court lobby where those litigants who do not e-file can leave their documents for filing. If there is a problem with the document, the litigant is typically notified by the clerk’s office via telephone or email as to the problem and the correction needed in order for the document to be filed. This procedure remains in place at this time. The clerk’s office remains available via telephone or email to assist with any questions.
The court implemented an Emergency Telework Program for staff, to reduce the numbers of employees in the courthouse while continuing to process appeals and writs and make sure the essential work of the court continues to get done. Essential employees continue to work on site and follow appropriate social distancing protocols.
The March shelter-in-place orders coincided with Fourth District, Division Three’s regularly scheduled oral argument week and during that month we handled things on a case-by case basis. We were still permitting in person oral argument, but also permitted counsel to appear telephonically if they requested to do so. We implemented social distancing protocols inside the courtroom for the public and counsel who appeared in person. In April, the court suspended all in person oral argument starting with our April calendar.
2. Are arguments in cases currently being handled on a one-off basis, or are they being argued on the dates scheduled for the most part?
The Fourth District, Division Three generally hears oral argument during the third full week of the month. Our cases are currently being set for oral argument pursuant to our normal procedures, with the parties being notified of the date and time for telephonic oral argument about six weeks in advance. If the calendar notice went out before the court suspended in-person oral argument, the parties were notified that argument would go forward as scheduled telephonically. Requests for continuances of oral argument require a showing of good cause and are processed and considered pursuant to the court’s normal practices. The court is not granting requests for continuances based solely on counsel’s desire to wait until the court can resume in person argument.
3. This Division has ordered that all oral arguments are to be done by telephone until further notice. Is that the only option?
Currently all in-person oral argument sessions in the Fourth District, Divisions Three have been suspended and if counsel choose to present oral argument they must do so telephonically.
4. How does the public gain real time and archival access to the proceedings- through the live-stream exclusively?
Telephonic oral argument at the Fourth District/Division Three is live streamed on the court’s public website and the recording of those sessions are archived on the website for six months after argument.
5. What is the process for telephonic argument in the Fourth Appellate District, Division Three?
Counsel (including self-represented parties), are given written instructions on the court’s procedures for telephonic oral argument prior to the scheduled argument date. In short, currently oral argument is conducted via a conference call set up for each morning and afternoon argument session. Counsel are given a dial in number and a passcode for joining the argument session and are required to join the conference call at the beginning of the session. All Justices and counsel participating in the argument session are on the call. Counsel are instructed to mute their connection until their case is called. After announcements from court staff, the argument session is called to order by the Presiding Justice or Acting Presiding Justice and the cases are called in the normal fashion. When argument on a specific case is concluded, counsel on that case are free to leave the conference call. When all cases on the argument session have been heard, the conference call is terminated.
6. How is time managed? Are counsel expected to keep track themselves?
The Presiding Justice or Acting Presiding Justice on the case keeps track of the parties’ time during oral argument.
7. Any technology advice for counsel arguing remotely?
Be in as quiet a place as you can find, background noise can be distracting. If using a telephone connection try to avoid using cell phones and any phone on speaker, as it degrades the caller’s audio quality and increases the possibilities for feedback and background noise. If using an Internet based service use a quality microphone and camera on a stable and robust Internet connection. Newer computer hardware (desktop or laptop) may improve video rendering for those courts holding remote arguments by video.
8. What happens if an attorney gets disconnected while participating in or waiting for an argument? Has this happened much?
So far, we have not had this occur during argument. If counsel does get disconnected, they can redial and rejoin the conference.
9. What general advice can you give to attorneys for arguing by phone?
Counsel should try to speak slowly and clearly. Because of the latency inherent in many teleconference systems, be sure to integrate brief pauses (a couple of seconds) to allow for the bench to interject any questions. Actively listen for the Justices getting ready to ask a question as you will not have the visual cues that a question is coming.
10. Do you think this experience has opened up the possibility for more participation by video or phone in the future, even when in-person arguments are possible again?
There are no current plans in the Fourth District/Division Three to expand use of remote appearances after the current COVID-19 crisis abates.
11. Any parting thoughts for remote oral arguments in the Fourth Appellate District, Division Three?
The Justices and staff are impressed by how well and quickly counsel have adapted to the current circumstances and how well telephonic oral argument has generally gone. Although there are bound to be some rough patches as we adapt to this procedure, with each session the telephonic argument process runs more smoothly. The court appreciates counsel’s patience with the new procedures.
May It Please The Court: Oral Arguments in COVID-19 Times—Fifth District
To provide insight into the Fifth District’s remote oral argument process in the wake of COVID-19, Presiding Justice Brad Hill answered questions on May 4th posed by Matthew Scherb of the Committee on Appellate Courts for the Litigation Section of the California Lawyers Association.
1. To start, at what point did the Fifth District make changes to oral argument practices in response to the pandemic, and what were those changes? (I see there was an earlier order regarding argument issued on March 16 or 17, 2020.)
Once Governor Newsom issued his order, we adjusted our oral argument schedule whereby all parties appeared remotely. Starting with our April 17th oral argument the Fifth District has been conducting all arguments via video. All parties and justices are able to see one another and the public is able to see the arguments streamed from our court website.
2. A second order regarding argument issued on April 13, 2020. How did this change things, and does this reflect the current state of argument in the Fifth District? That is, is it accurate to say all in-person argument is now suspended and counsel may appear by CourtCall or video conferencing? When argument notices are sent, are counsel being asked to make this choice and inform the court?
No changes were made after this second order. All parties are requested to appear via video unless they are unable to do so. Our IT staff (including our court CEO) have contacted individuals to help them prior to argument with technical issues, or just to help them feel more comfortable with this new process.
Although about 90-95% of our staff is working remotely, our court is fully operational. Cases are being processed and filed. New filings are being taken in and handled in the normal fashion. It’s been quite a challenge for everyone, but it is working far better than any of us could have imagined under the circumstances.
3. Is it possible to estimate how long remote-only oral argument will last? Is it safe to say May and June arguments will be remote? July or August, or beyond? Do you anticipate any changes to how remote arguments is conducted as the months draw on?
At this point it is impossible to know, but we have planned to have video arguments at least through June.
4. Video streaming of argument is not new to the Fifth District, but I assume attorney appearance by video is new. Did having the video streaming system in place make offering video appearances easier?
We did not have the video platform for remote arguments available, so we chose to use the same system the California Supreme Court was using. It has been working very well and the comments from attorneys and others have been very favorable.
5. Are video appearances easier or harder to set up and manage than telephonic appearances–for the court and for the appearing lawyer? I suspect CourtCall may be familiar to some attorneys, but appearing in court by video is something few have done. What software does the court use, and would an attorney need, for video conferencing? What testing, if any, is done in advance to make sure lawyers can be seen and heard when argument begins?
It is slightly more difficult, in part because it is new. We are also somewhat at the mercy of a person’s internet connection and wireless capability. That is why our staff has been reaching out to each attorney or party in order to walk them through the process prior to argument. We use software called BlueJeans, and attorneys need to download a client app to appear. We understand that this is a new and stressful situation for everyone, so we are trying our best to make it as easy and seamless as possible.
6. Do the justices prefer appearances by CourtCall or video, and why? Should an advocate strive to use one over the other? Do the justices always appear by video?
Although we certainly prefer in-person argument, seeing everyone via video works well under the circumstances and gives us the sense of being better connected. We have been using CourtCall for years and it also works very well.
7. What are the numbers of attorneys appearing by CourtCall versus video?
At this point everyone has been using video. We chose to utilize the video option exclusively, as some attorneys statewide were concerned that they were not able to “see” the justices and were unable to get a “sense of the room.” Some of those attorneys were requesting continuances on that basis. We felt it better to do video arguments exclusively to deal with that concern, while limiting the number of continuances. Our court has been very productive over this period of time and we attribute that to a very dedicated staff and great technology.
8. What is arguing by videoconference like? What do lawyers and the justices see on their screens, and what do they hear during the argument session? Do lawyers call in at the beginning of the argument calendar and wait their turn while they listen to others argue?
It works well and we haven’t had any problems. The video quality is excellent and there is no time lag between questions and answers. Everyone sees all of the justices and both parties on the screen. Currently, we set individual times for the video arguments so that attorneys don’t have to wait on the line, but that could change in the future depending on the number of cases set on any given day.
9. What can lawyers do to best present themselves on the phone or by video and make things easiest for the court? Landlines? Higher quality microphones? Camera placement? Elimination of background sounds? Any other tips?
No great tips other than to sit as close to your router as you can so your connection is as strong as it can be. Most laptops have built in cameras that work very well. During argument, others at the home or office should be alerted to the video argument—as all of the justices and parties appear on the screen the entire time – so noise or unexpected visitors will indeed be a distraction.
10. Any noticeable technical hiccups? Have lawyers been disconnected while arguing or waiting to argue? How would that be handled?
No problems so far. We have technical staff standing by with everyone’s cell number – so they can call and correct any problems that might arise instantaneously.
11. Is the court continuing any arguments in the hopes of having those arguments in person? Has there been any noticeable change in the number of requests to continue argument?
Once we started the video arguments, we have not been continuing cases on the basis that the parties would prefer to appear in person. Requests to continue on that basis are now quite rare.
12. Will these COVID-19-related changes to argument have lasting impacts on the way the Fifth District conducts oral argument? Do you think the video appearance option may stick around even when in-person argument is again possible?
It’s hard to tell. We have always used CourtCall and will continue to do so. We don’t have any current plans to switch to a video format once we all return to the court.
13. Any parting thoughts about remote argument?
In sum, none of this would have been possible without our dedicated staff who have gone out of their way to make this work for the attorneys and public. I can’t thank them enough. I should also thank the attorneys and litigants who have appeared “at our court” via video. They have been very accommodating and very flexible as we worked our way through this process.
May It Please The Court: Oral Arguments in COVID-19 Times—Sixth District
To find out how remote oral arguments are going in the Sixth District under the COVID-19 emergency orders, Marina Meyere, the Managing Attorney for the Sixth District, was interviewed April 27, 2020 by Paul Killion from the Committee on Appellate Courts for the Litigation Section of the California Lawyers Association. Ms. Meyere’s responses are below:
- The shelter-in-place orders started in California in mid-March. How did the Sixth District initially respond?
The Court initially suspended all arguments for several weeks in response to the Emergency Declaration and the stay-at-home order in Santa Clara County. This allowed time for the court and staff to set up at home and for contractors to install an audio conferencing system to permit multi-party phone conferencing. While the court had audio appearance capability, it was limited and designed to allow counsel to call into the courtroom. The system needed to be expanded to permit all counsel, the justices, and the public and press to participate remotely. The court and staff are now working remotely full time. (Marina’s dog barked on cue)
- Are arguments in cases currently being handled on a one-off basis, or are they being argued on the dates scheduled for the most part?
The Court is holding argument on a regular schedule now. The Court had to cancel only one day of argument in March, but was able to hold five sessions in April and four sessions are scheduled for May so far. Because the trial courts have been shut, the Court of Appeal’s workflow has been impacted. Although the clerk’s office is closed to the public, all essential court services are now operational at the Sixth District, including e-filing, a drop box for paper copies, telephone access and a process to allow even in-person review of the Court’s paper files.
- Sixth District Misc. order No. 20-002 (4/10/2020) indicates all oral arguments are by telephone until further notice. Is that the only option?
Yes. Currently only telephonic arguments are available in the Sixth District. The court is working to develop video appearance and livestream capability, using the same system the California Supreme Court uses. The Judicial Council is working with the district courts of appeal to help set up the systems, which will require purchase and installation of new technology and hardware. The First, Second, Third and Sixth Districts do not have this capability currently. It is hoped to be in place in the Sixth District by the end of the year.
- I see there are instructions for Listen-Only Telephonic Oral Argument on the Sixth District’s website. Is this available to anyone?
Yes, the listen-only dial-in is open to anyone, including parties, clients, members of the public, and press. Participants on the listen-only line are not identified and are automatically muted.
- Are any oral arguments being live-streamed for public listening?
Not yet. This will be available once the live-streaming video system is set up. Currently, all arguments are audio recorded and the recordings are available upon request to the Court.
- What is process for telephonic argument in the Sixth District?
The Court uses the Century Link system for telephonic argument, which is familiar to counsel who use court-call in the superior court. Counsel are provided a dial-in number and password in advance of argument. On the date of argument, counsel dial into the session in advance of the start time, as instructed, and identify themselves to the court clerk, who is physically in the courtroom. Appearances for the entire session are taken by the Presiding Justice, who asks for confirmation of the time estimates from each counsel. (Only 15 minutes per side are permitted for argument in the Sixth District, except upon prior request). Once appearances are taken, the first matter is called and all other counsel are asked to mute themselves. Counsel for the remaining matters must listen to the proceedings to hear when their matter is called, then unmute to participate. The general process is similar to in-person argument sessions.
- How is time managed? Are counsel expected to keep track themselves?
Counsel must keep track of time themselves. The Justices will only announce when time is up.
- Any technology advice for counsel arguing remotely?
Counsel arguing are asked not to put the call on speakerphone, as it detracts from the audio quality. Headphones work very well.
- What happens if an attorney gets disconnected while participating in or waiting for an argument? Has this happened much?
So far, the Court has not had issues with dropped calls during argument. If this should happen, just call back right away.
- What general advice can you give to attorneys for arguing by phone?
The back and forth of argument is proceeding like normal arguments. The Sixth District Justices are in their “usual groove” and fully adapted to the new process. They understand there can be a short delay between question and response. You may be interrupted. Pause now and then to allow for questions.
- Do you think this experience has opened up the possibility for more participation by video or phone in the future, even when in-person arguments are possible again?
Yes. The modern world has redefined what public access means, and expectations have changed. There is efficiency from using remote technology for arguments, and costs savings for the parties by not requiring counsel to travel.
- Any parting thoughts for remote oral arguments in the Sixth District?
The Sixth District is open for business. We’re ready to hear your arguments.
Tips for oral argument by video or phone in the age of COVID-19
How to prepare for oral argument
- Watch others do their arguments by video, both by looking at archived video and by watching live (ideally on the week of your oral argument and ideally with your panel).
- Moot by video.
- If you can choose between appearing by video or phone, choose video. Video makes you feel present and part of what’s “really” happening
How to set up for oral argument
- Get a real microphone to plug into your computer if you have any doubts about the one built into your device–and test it.
- Choose a room for your conference with a carpet or rugs, bookcases, drapes, rather than a room with hard floors and bare walls; reverberant sound can cause audio issues during conferences.
- Reach out to the tech people at the relevant court ahead of time. In particular, Richard August and other tech people at the Ninth Circuit are super helpful.
- If you can, have one computer for the videoconference and another one (or tablet, etc.) with your notes/the record/whatever material you want at your fingertips.
- Find as large a desk as you need to have as much paper in front of you as you want. (And bear in mind that paper and other devices can be easily kept out of view of your video camera.)
How to handle the actual argument
- Just roll with whatever happens and maintain professionalism.
- Reduce ambient noise as much as possible in and around the room you are using; other people talking, street sounds, televisions in the next room, household appliances such as washers and driers.
- Cover the desk with a towel to minimize paper-rattling.
- Make sure you are near as is comfortable to your desk phone or computer microphone. This will help intelligibility.
- Keep your speakers loud enough to understand clearly, but not louder than that. This will help to reduce echo issues.
- If you are hard of hearing consider using a headset to assure good audio without having to turn your speakers up loud.
- If you use hearing aids and they have the capability of a Bluetooth connection to your computer or laptop, consider using that option.
- Face towards the windows in the room, with the camera faced away from the windows. This will put light on your face and not on your back.
- If you are using a laptop or a tablet, raise your device up on a stack of books or other solid items so that the camera is near to eye level. Err on the side of leaning forward, else your head will tend to blend into your neck and double-chins will appear, even if you don’t have them.
- Move your camera so that your image is of your head and shoulders, in the center of the screen.
- Position the Zoom window directly under the camera to simulate eye contact.
- Put the screen on gallery mode, if that is an option. In speaker mode, the program decides which face to feature, and random/inadvertent noises can lead to abrupt screen shifts.
- Be aware that whatever the mode, you can see everyone’s faces more clearly and distinctly on the screen than in court, so facial reactions, eye rolls, smirks, all jump out more than in person. Practice your poker face.
- Even with good broadband connections, there is a little lag between when someone speaks and when everyone hears. Wait a beat before jumping in to speak or answer–it’s easier to speak over each other and the resulting after-you-no-after-you takes longer to resolve.
- You can’t assume that everyone’s connection is good or consistent, so it’s better to talk more slowly and enunciate more clearly.
- Position your phone to avoid inadvertent bellowing.
- Use a stopwatch (or app) that counts up and doesn’t beep, not a countdown timer.
- Zoom lets you share windows from your computer to the group, so have the briefs and record open. And make sure you have bookmarks at all the important points. Screen-sharing is a game-changer, but if you get the opportunity to do it, you want it to look smooth.
- However, do not, under any circumstances, share your whole screen. Share only the window you want to share.