Remote Argument Survey Highlights

The 9th Circuit presents: Remote Argument Survey Highlights Positives and Negatives of Streaming During Pandemic

• The United States Court of Appeals for the Ninth Circuit has been posting videos of appellate courtroom proceedings for 10 years and streaming video of oral arguments held in court for much of that time. Now, due to COVID-19 restrictions, each oral argument stream is a convergence of videos from a variety of locations: lawyers’ offices or homes and judges’ chambers or homes. En banc proceedings, requiring over a dozen feeds to make up the hearing, are even being held.
• According to a survey sent out in late August by Molly Dwyer, clerk of court for the Ninth Circuit, the video process is well-established and is getting an important job done, but all parties look forward to meeting in person, again. The survey was sent to about 300 lawyers who have participated in the video arguments; 219 responded.
• The first COVID-driven remote hearings were held the week of March 23. Between then and the end of April, 64 arguments were heard over 51 days. May, June and July saw another 371 arguments over 119 days. Eighty-five percent of participants did so via video connections, the rest via audio (phone) connections.
• lawyers reported reasonable satisfaction with the remote hearings, with 47 percent stating the experience was similar to in-person proceedings, while 15 percent said remote hearings were better. A sizable number, 29 percent, said remote hearings were worse than in-person, while 9 percent said the remote hearings were much worse.
• the survey revealed that a large proportion of participants thought the level of engagement was similar or better than in-person arguments. While only 14 percent said the level of engagement was lower, 78 percent said it was similar to in-person proceedings and 8 percent said they thought engagement was higher than in-person hearings.
• When lawyers were asked if they would appear remotely again, the splits were greater, with 13 percent saying they would appear anytime remote hearings are offered, 32 percent said they would only participate due to the current or another pandemic, 37 percent said they would appear if the opposing counsel was doing so, while 18 percent said perhaps they would appear remotely.
• A clear bright spot in the survey shows 74 percent of lawyers surveyed rating the technical assistance offered by the court as excellent, with 21 percent calling it very good, and only 5 percent said the technical assistance needs improvement.