Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, January 16, 2022

Arguing in the Age of COVID

    As the pandemic became undeniable and understandings of its infectious nature grew, most courts adjusted to remote arguments, and many trial courts experimented with Zoom juries. In March 2020, I had a live argument in another state. My family, concerned about my well-being, loaded me up with trial-sized hand sanitizer, KN95 masks, and nitrile powder gloves. I recall feeling reassured when my departure airport was empty, only to discover that my connecting airport was a madhouse of largely unmasked travelers. Once in the courtroom, the presiding judge asked everyone to keep social distances, especially from the bench, as well as announced that the courthouse was being closed to the public indefinitely as soon as my oral argument concluded – something that made me wonder whether that decision was a day too late.

            Two months later, I had another oral argument that required a flight and hotel room to attend. Again, well-equipped to do everything that the latest medical advice suggested, I went. The judge immediately advised the attorneys to take off their masks, suggesting that we should have nothing to worry about from co-counsel seated at the table with us. And rather than chance getting on the bad side of the judge, we dutifully complied.

            Most of my arguments since then have taken place in my study at home through Zoom. During one argument before a Seventh Circuit panel, despite taping a sign to my door that alerted my family that I was arguing a case and that no one should enter, I heard the door open. I wondered who could have missed the sign, but remained focused on the judges in the on-screen tiles and my answers to their questions. Only after the argument was over and I had disconnected from the court, did I turn around to see that the door was left open. Turning further, I spotted the culprit – one of our dogs had opened the door and quietly come into the room, hopping up onto her favorite chair to watch the argument. I had not spotted her over my right shoulder but felt sure that the judges had. I wondered whether I may have won some points for her complete silence, knowing that the judges were likely to be understanding about the circumstances of arguments in the age of COVID. At least I did not have to assure them that I was not a cat.

            In another instance, when New Orleans was particularly hard hit, I contacted opposing counsel, who also would have had to travel, about seeing if we could petition the Fifth Circuit about changing the scheduled in-court argument to Zoom. The court kindly accommodated us.

            Today, weariness over remote arguments has set in. In fact, in a recent filing opposing a Zoom trial, defense counsel in a case pending in federal court in California cited “Zoom fatigue” as one reason to grant a continuance to a time when a live trial might be held.[1]

            The availability of vaccines and boosters appears to have convinced many, perhaps prematurely given the spread of the Omicron variant, that the time to appear in person has arrived once again, even if some appellate courts have recently reversed engines and notified counsel that remote arguments will replace their scheduled live arguments over the next few months. I recently had one argument postponed a month because opposing counsel tested positive shortly before the scheduled argument.

            While I have discussed in an earlier post some advice about arguing remotely, the basics of preparation, whether live or remote, remains the same. For most arguments, months have passed since the briefing ended. Counsel needs to review everything in the case: Transcripts, arguments, supporting and conflicting authority. In one U.S. Supreme Court argument I had when no justice had any trial experience, I was asked by a justice just how one of these cases is tried in that particular state. As a purely appellate lawyer, I was an inexperienced at trial as the justices were. Moreover, I was neither admitted in the state from which the case came nor had ever witnessed any of the trial. I said that, based on the transcript, I could only describe how this case was tried and then proceeded to do so. The justices’ fascination with trial meant that it was the longest period I had during oral argument in that case without an interrupting question. The point is that preparation must be comprehensive, even about matters that do not affect the outcome.

            The Supreme Court produces a Guide for Counsel arguing before that court. In it, it relates an anecdote about a commercial free speech case in which counsel, representing a beer company, was asked, “What is the difference between beer and ale?” The inquiry had no substantive effect on the case, but the justice received a knowledgeable answer. As the guide states, counsel “knew the business of his client, and it showed.”[2]

            With comprehensive preparation, counsel can be prepared for an unexpected question that may not go to the merits of the case but enhance credibility – and be well prepared when a scheduled argument switches from live to remote and vice versa.

 

[1] Counsel cited “How to Combat Zoom Fatigue,” Harvard Business Review (April 29, 2020); and “‘Zoom Fatigue’ Is Real. Here’s Why You’re Feeling It, And What You Can Do About It,” News@Northwestern, (May 11, 2020).

[2] Clerk, Supreme Court of the United States, Guide for Counsel, at 7 (Oct. Term 2021).

https://lawprofessors.typepad.com/appellate_advocacy/2022/01/arguing-in-the-age-of-covid.html

Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink

Comments

In July-August 2020 I had a long in-person trial in federal court. There were four defense attorneys and two plaintiffs' attorneys. The judge made us all remove our masks for the entire trial. Same with the witnesses. No one blinked twice. In September 2020 I had two in-person oral arguments before a state court of last resort. Again, no masks for the actual arguments and no option to appear remotely. That is the way things should be. If you are unwilling to travel for an argument, time to retire.

Posted by: John | Jan 20, 2022 6:16:02 AM

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