Monday, February 7, 2022
Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit has been in the news recently after Gabe Roth,* the executive director of Fix the Court, filed an ethics complaint against Judge Smith. The complaint centers around Judge Smith telling a government attorney who wanted to remain masked during oral argument to remove his mask. Several media sources have reported on the incident, including the ABA Journal. This post, however, is going to focus on what happened about two weeks before the argument.
On December 21, 2021, the government attorney filed an unopposed motion to appear before the Fifth Circuit remotely. The attorney cited the spread of the omicron variant of COVID-19, the fact that he has young unvaccinated kids, and that the Office of Management and Budget had issued guidance “indicating that only mission-critical travel” was recommended at that time. According to the motion, “In evaluating whether or not travel is mission-critical, agency leadership is directed to strongly consider whether the purpose of the travel can be handled remotely.”
This motion was apparently denied. According to another ABA Journal article that I found, it appears that in the Fifth Circuit the choice to proceed in person or via a remote service is being done on a panel by panel basis. I was later able to clarify with the clerk's office that under FRAP 27(c) and the Fifth Circuit's internal operating procedures, requests for remote argument are single-judge motions that are routed through the presiding judge on the panel.** According to that same article, other circuits are currently holding only remote arguments.
If COVID-19 has taught us anything it is (1) to stock up on toilet paper and (2) there are many things that can be done just as well (if not better) remotely. I firmly believe that oral argument is one of those things.
Let’s think of the purpose of oral argument. One of the key purposes of oral argument is to answer the judges’ questions—questions that stem from their review of the briefs and materials. The Fifth Circuit is one of the courts that requires attorneys to request oral argument—and that request isn’t always granted. So, in cases that it is, the judges believe that a conversation with the attorneys will help them decide the case. Having engaged in hundreds of conversations via Zoom over the last two years, including numerous student oral arguments, moots for real attorneys, and large faculty senate meetings, I just don’t see how that purpose of oral argument is diminished by a virtual format.
Another purpose of oral argument is to persuade the judges using your ethos. I do think that this can be harder to do remotely, but not impossible. I have blogged on this site, as have others, on tips for a successful remote argument. It is doable, just different.
I cannot think of any reason why an attorney who wants a remote argument, especially if the other side agrees, should not be allowed to present remotely—pandemic or not. And while there are countless reasons why remote argument should be allowed, I want to focus on two. The first is cost. Why should the taxpayers pay flight, hotel, and per diem for an attorney to fly from D.C. to San Francisco or New Orleans or Anchorage to deliver a 10-minute oral argument when that attorney could appear remotely. Likewise, non-profit organizations that engage in advocacy work could experience tremendous cost savings with remote arguments.
The second reason is convenience. Convenience probably isn’t the best word, but it is all that I am coming up with right now. As the mom of two very young kids (3.5 and 1.5), it is hard for me to leave town and travel. My spouse and I are fortunate enough to have family in town for half the year, and they stay at our house when either my husband or I are traveling. But, not everyone who is in a caretaking role is that lucky. Remote arguments would allow me to have an appellate practice, but still be there at night to tuck in my kids at night.
Allow me a real-life example. In June 2019 (yes, pre-pandemic!), I was set to travel to South Carolina to speak at the National Advocacy Center. It was a pretty neat opportunity—I would be presenting to the Appellate Chiefs from the U.S. Attorneys Offices. Shortly before the event, my son, who was 15 months old at the time, got very ill. He was hospitalized for a few days, and I did not feel comfortable leaving town. With the help of the U.S. Attorney’s Office in Tucson, I was still able to give my presentation remotely. I headed to their downtown office and used their video conferencing software. Since it was pre-pandemic, it was little bit of a clunky presentation, but overall I think that it was still effective. And, I was able to be home if my son’s condition regressed (thankfully it didn’t).
After nearly two years of pandemic I get that we are ready to be back to “normal.” But I don’t see any reason why “normal” can’t include some of the amazing technology advances that we have become accustomed to using. If you allow me one more story—my husband and I traveled last weekend to a conference and left our kids with my parents. It was the first time we had done so. While we were driving to our destination, I called to check in on things and “chatted” with our 19-month-old. As we “talked” I could hear my mom telling her that this call didn’t include a video. Afterwards, I reflected to my husband that our kids will only know a world where there is video calling. That is remarkable to me—I remember how novel it was when dad got a brick cellphone. And while we can and should be careful that we don’t become addicted to technology, there is no reason we can’t use it to work smarter and more efficiently. And, if it allows me to have more hugs and slobbery toddler kisses at night, rather than staying alone in a hotel room, I am all for it.
*Edited to fix the name of the executive director of Fix the Court.
**After writing this post, I learned the underlined information from the clerk's office. I have updated the article to reflect that information. A big thanks to the clerk's office for answering my questions. When in doubt, call the clerk!