Back to the Future: Conducting Virtual Oral Arguments

By: Professor Abigail Perdue (Wake Forest)

As COVID-related course interruption prompts schools, universities, and now courts to suspend in-person meetings and transition online, two questions sprang to my mind: Are we prepared for this change? Are there established best practices for videoconferencing during court appearances? Thankfully, the answer to both questions is a resounding YES!

Admittedly, my curiosity was not purely academic. By way of background, I’m a self-professed technophobe. I chose my last apartment in part because it was located across the street from the local library. I’ve never owned a Kindle because I prefer the feel of the page in my hand. The only Alexa who has ever assisted me is a real person, and to be honest, Siri and I are not on speaking terms. She just never seems to understand me.

So why the sudden interest in trying brave new technology? Because I’m one of the countless law professors across America compelled to host oral arguments virtually for the very first time due to COVID-related course interruption. Eek! To be honest, this unprecedented turn of events provoked a bittersweet mix of emotions in me: angst about things that might go wrong, overwhelming relief and gratitude that my university had done the right and responsible thing, and more than a little excitement at the prospect of trying something new.

But it’s actually not new at all. What seems like a brave new world to me is old hat to most courts. A 2006 study regarding the use of videoconferencing technology in federal appellate courts revealed that the Second, Third, Eighth, and Tenth Circuits have been conducting oral arguments and other court business via videoconferencing for nearly two decades! The pioneering Second Circuit debuted the technology as far back as 1999 (around the same time that Ricky Martin was Livin La Vida Loca). One Friday per month, one of the Tenth Circuit’s four courtrooms is dedicated entirely to videoconferenced oral arguments. As of 2006, approximately 10% of the oral arguments conducted each week in the hectic Second Circuit occurred via video. Whew! Although I’d been feeling #teacherguilt that my students would miss out on a traditional in-person argument, now I know that whether their oral argument is in person or virtual, I’m still preparing them for something they’ll likely face in the practice.

Most of the participants in the 2006 study indicated that while videoconferencing can have downsides, the benefits usually outweigh them. Despite occasional technical difficulties like audio delays, dropped connections, and inaudible attorneys, videoconferencing promotes greater access to courts, accommodates people who are ill or unable to travel, enhances security, makes scheduling easier, and saves significant time and money by obviating the need for travel. Legal scholars have also explored the benefits and concerns inherent in videoconferencing technology, particularly in criminal proceedings.

Similarly, a 2010 survey of state courts revealed that some state courts have also been using video technology for decades. Although participants lodged complaints about occasional technical difficulties, 80% indicated that video technology helped to administer justice while conserving judicial resources. Now the National Center for State Courts offers a video technology resource guide. A bibliography of articles about videoconferencing in courts has also been compiled.

With my #teacherangst somewhat eased, I turned to whether courts had developed best practices regarding when and how to use videoconferencing, particularly for oral argument. As it turns out, many, if not most, of the best practices true for an in person oral argument apply with equal force to virtual arguments. For instance, the Tenth Circuit advises attorneys appearing by video to:

“Act Natural–The panel judges will be able to see and hear you just as if you were presenting your argument in person.

Make Eye Contact–Since the camera is located on top of the monitor, by looking at the judges on the monitor, you will make eye contact with them.

Use Your Normal Voice–The podium microphone and system speakers will pick up and transmit your voice as clearly as if you were arguing to the judges in person. There is no need to speak louder or slower than you would in a normal courtroom setting.

Avoid Exaggerated and Unnecessary Gestures or Movement–Remain standing behind the podium. If you move away from the podium, you may be out of camera range and not visible to the panel judges. While normal gesturing can enhance your videoconferenced argument, extreme or exaggerated hand and arm movements can be even more distracting than when arguments are presented in person.

Dress Conservatively–Remember you’re a TV star. Just as on television, some colors are better than others (whenever practicable avoid white or vivid colors) and bold patterns may cause a strobe effect.

Avoid Unnecessary Noise–Noise such as caused by tapping on the podium or shuffling papers may be transmitted through the system to the panel judges, thereby making it difficult for them to hear or concentrate on your argument.”

With this guidance in mind as well as the sound advice of Zoom-aficionados Tracy Norton, Ann Nowak,[1] Ben Fernandez, Adrianna Duffy, and Curtis Nesset, I devised a tentative list of best practices for my students who will soon complete their graded oral arguments via Zoom. I have excerpted it below. (You’re welcome to use it or share it, but please provide proper attribution if you do.) __________________________________________________________

Tentative Guidelines for Oral Argument via Zoom

As you know, due to our COVID-related course interruption, we will be using Zoom to conduct your graded oral argument. In the practice, you may occasionally be required to appear before a colleague, court, or client via video. Some circuit courts also occasionally conduct oral arguments using videoconferencing technology. Thus, using Zoom will be a valuable and unique learning experience for you.

Even so, we are all relatively new to this technological platform, and as always, I appreciate your patience and flexibility during this time of transition. I will extend it to you in kind. Below is some helpful information regarding your graded oral argument. Please reach out to me if you have any questions or concerns that are not addressed below.

As with in person arguments, you are encouraged to host Zoom sessions with other members of your small section to practice for oral argument. This will help you prepare for the argument and become more conversant with Zoom. Your TAs and I will also conduct several practice sessions with you on Zoom before your graded argument.

Several days before your argument, I will send an invitation to your Google calendar inviting you to your oral argument on Zoom. Accept the invitation.

Before your argument, please turn off your phone, instant messenger, and any other noisy digital devices. Turn off all screens except your Zoom meeting room. Your email, social media account, and other pages should not be open or visible during your argument.

Please use a computer for your argument, not a smartphone or tablet. To be clear, you may use your laptop only for the videoconferencing technology, not for notes or consultation regarding the substance of your argument. For that, you are limited to your trifold and hard copy materials. (If you do not have a hard copy of your outline or access to a printer, then please just let me know before your argument so that we can discuss how to proceed.)

Be sure that your computer is fully charged before our meeting.

Please go to a quiet, well-lit place for your oral argument to minimize disruptions to the extent possible. Consider using headphones or earbuds if you have them to further enhance your ability to hear me. I will use a headset with a microphone to ask you questions, which should make me easier to hear. Be sure your computer volume is turned up to an appropriate level. If you can’t hear me, please say, “I’m sorry, Your Honor. Could you please repeat your question?”

If there is anyone else in the location where you will be conducting your argument, such as family members or roommates, please advise them beforehand about your argument so they do not accidentally disrupt it or get caught on camera. If you have a pet, you may wish to place the pet in another room to minimize pet-related disruptions like barking.

Be sure that your computer is positioned in such a way that nothing is caught on camera that you do not wish others to see, particularly inappropriate images.

Be sure you are in a place with a strong and reliable internet connection. (Do not use cell service as that will consume significant data).  

Please have a bottle of water handy and feel free to take a drink during the argument if necessary.

Please dress appropriately as you would for an in person class. In the real world, you would wear business attire for any court appearance, even one occurring via video. However, some of you may have left campus without packing business formal attire and now you do not have it with you. For this reason, I am waiving the requirement that you wear a suit to your argument. However, please do dress appropriately. Avoid distracting dress with offensive messages or logos. Dark, solid colors will make you easier to see on screen.

Approximately five to ten minutes before your appointed argument time, please click on the Zoom invitation link. Follow the prompts, and it will take you to our Zoom meeting room. I have set up our meeting room so that you can join it early. Zoom will probably prompt you to test your audio and webcam at this time. Please complete these tests to make sure that everything is turned on and working properly. Email me immediately if there is a technological issue that you cannot resolve.

When you join the meeting room, your webcam and microphone will likely be turned off. The microphone icon for audio and the videocamera icon for the webcam are visible in the left hand corner of your screen. You may need to turn them on to complete the tests mentioned above. When they are turned off, a red slash appears in front of them. If you click on an icon, it will be turned on and the red slash will disappear.

Maintaining eye contact is just as important on camera as it is in person. You’re expected to have some portions of your argument memorized such as your introduction and conclusion.

Use your natural voice, but do speak clearly and loudly. Articulate your words and speak at an even pace.

Use your trifold. Shuffling papers and being disorganized is just as distracting on camera as it in person. In both instances, the microphone may capture the noise.

Avoid distracting facial expressions and hand gestures just as you would during an in person argument.

Watch for time cards, which will be flashed on screen during the argument. You will receive cards for five minutes, one minute, and time. When you get the final time card, stop immediately. Do not nod your head or otherwise acknowledge the time cards when you receive them.

Once your argument is complete, please click on the microphone icon to mute yourself during my verbal feedback. Remember to unmute yourself if you have any questions. To unmute yourself, just click on the microphone icon until the red slash on it disappears.

I do not plan to record our session together. Thus, please take any notes regarding the verbal feedback provided at the conclusion of your argument. Nor may you record our session absent my express permission.

You may not share, post, discuss, or distribute any of the questions you were asked during your oral argument or the feedback you received. Doing so violates course policies and may constitute an Honor Code violation as it imperils the integrity of other graded oral arguments. It is analogous to sharing an exam with other test takers who have not yet taken it.

If you have any questions about any of the above, please ask reasonably in advance of your argument.

As always, please reach out via email if you have any questions or concerns. I look forward to what I’m sure will be an excellent oral argument!

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With my #teacherangst eased and a sound plan in place, I can now turn to more pressing concerns—like where the heck to find toilet paper!

 

 

 

 

 

[1] Professor Nowak conducted an excellent training session regarding how to use Zoom to conduct oral arguments.

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