9th Cir. Held First Virtual En Banc Sessions

See Ninth Circuit Holds First Virtual En Banc Sessions

Many courts, including the United States Supreme Court, have been hearing arguments via audio connections, but the U.S. Court of Appeals for the Ninth Circuit broke new ground when it held its first ever virtual en banc hearings from September 22-24.

Hearings are posted on the Ninth Circuit’s YouTube Channel. Each hearing had 11 judges, with Chief Judge Sidney R. Thomas presiding. ... Chief Judge Thomas has long been a proponent of allowing video argument in appropriate cases, and he participated in the first Ninth Circuit video argument over 20 years ago. “Consistent with the court operations plan established when the pandemic became widespread in March, and to preserve the health and safety of the court, court staff, attorneys and the public, the court has not held in person oral arguments since March,” said Chief Judge Thomas. “We have continued to hear virtual oral arguments and have successfully done so in well over 500 cases. We postponed en banc arguments in March and June, mostly to make sure that we felt confident in our technical ability to conduct virtual arguments.”

Molly Dwyer, Clerk of the Ninth Circuit Court of Appeals, weighed in on the technical end of the virtual hearings in the Ninth Circuit, noting that they will occur in other circuits, if they have not already begun. “In general,” Dwyer said, “testing everyone’s connections up front is the biggest challenge, but we do that for all arguments, not just en bancs. I watched all of them and I thought they went smoothly. In a live session the judges have to compete with one another to some degree to ask questions – there is no order. In the virtual session, the Chief managed everyone by calling on them one at a time so there was no speaking over one another the way it can often happen in a live session.” Dwyer rendered honors where due: “Our entire audio-visual staff have been the super heroes throughout this pandemic. We couldn’t have managed without them.”...
Chief Judge Thomas noted there is no legal impediment to conducting oral arguments by video. “We have allowed parties, with the court’s permission, to appear by video for decades,” he said. “Judges have also appeared by video for argument when circumstances made personal appearance difficult or impossible. “Most judges prefer in person argument because it has an interactive dynamic that enhances the argument. That said, virtual argument is an entirely acceptable substitute, even in en banc cases. The virtual format in an en banc case requires a more orderly process, given the number of judges involved. But a number of judges expressed a preference for the format and suggested we use it when we return to live hearings,” said Chief Judge Thomas.
Although the en banc hearings are still pending, so direct feedback has not been heard, the Ninth Circuit has conducted a survey of lawyers who appeared virtually before three judge panels, and the results were overwhelmingly positive. “We may make some changes with three-judge panels to allow greater virtual flexibility. Once it is safe to return to the courtrooms, we plan to resume in person en banc hearings,” said Chief Judge Thomas.