Thursday, February 17, 2022
Tessa blogged a couple of weeks ago in favor of remote arguments. I'll agree to a point, but wanted to add a couple of thoughts about the value of going back in person.
First, the agreement. In many State and Federal courts, the attorneys have to travel a great deal to argue--drive long distances, take a plane, etc.--or have to get additional child care. Where that would work a burden on the parties, I am in favor of having a remote option because the time and money it saves outweighs any gains from ease of conversation at an in-person argument. So having it as an option is great.
Now, the (maybe?) disagreement. Tessa is probably right that the purposes of oral argument can be accomplished just as well on a remote argument, and there's not too much persuasion lost. But it's just not the same experience. If the point is to crank out cases, then fine. But there's something lost for the judges and the attorneys in the experience. Appellate judges live very cloistered existences in the best of times, and have been even more isolated in the past couple of years. Some haven't even been around their clerks in person! Oral argument has historically been a way to professionally connect with the outside world, and I know many appellate judges who relish it. I also heard it directly recently. I went to the investiture of a close friend who was appointed to our intermediate appellate court and saw most of our appellate judges in person for the first time in years. Without exception, those I talked to yearned to go back to in-person arguments. We have all had an endless string of Zoom (or Teams or Webex) meetings, and oral argument has kinda felt like just another one of them.
For the advocates who live and work close to the court, the value of in-person interaction is high. It's easier to read the court, and to have a more natural conversation. It's just more enjoyable, and I want to enjoy my work. While working at home has been very convenient to help with the kids, it's also meant very little work-life separation. I want to go to court again and not have kids crying upstairs while I try to hold forth on constitutional and statutory interpretation. I want to see opposing counsel before and after and chat about work and family. There's something to feeling more like a lawyer, too. When I started practicing, I was in an old run-down courthouse. The wallpaper on the walls was peeling off, there were water stains on the ceiling, etc. Every now and then I would go to the federal courthouse in Salt Lake and see the wood paneling, the beautiful architecture, etc., and say to myself, "this really feels like I'm a lawyer." It's been hard to feel very professional sitting in my basement surrounded by boxes of miscellany that we don't have room for elsewhere.
If Tessa means that remote arguments should simply still continue being an option, then I agree--especially if there's a hybrid option where one attorney can appear in person if desired. But please don't make remote arguments the rule rather than the exception when this is over.