Law.com has Appellate Judges, Including Justice Breyer, Reflect on Remote Arguments in Virus Era
One of the negative things about remote arguments, Justice Stephen Breyer said, was the loss of the conversational tone between a justice and a lawyer at oral argument.
- Twelve jurists, including Justice Stephen Breyer, responded to questions about their experiences with remote arguments in an article in the Journal of Appellate Practice and Process: “Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture?” In addition to the U.S. Supreme Court, the judges who participated in the survey sit on the U.S. Court of Appeals for the First Circuit and the Supreme Judicial Courts of Maine and Massachusetts.
- Although the audio and audio-visual formats each had positive and negative effects, the judges agreed that justice is being served by using these formats. Remote arguments are likely to survive the pandemic in some form for certain courts, but “something is lost,” according to the article’s author, Margaret McGaughey, former appellate chief of the U.S. Attorney’s Office for the District of Maine.
- The jurists also had some advice for lawyers:
- >> Hard-wired, broadband internet access is more stable and consistent than hot spots.
- >> For audio-only arguments, landlines have less static and fewer interruptions than do cellphones.
- >> Wearing the same type of clothes the advocate would wear in an in-person argument can help put an advocate in the proper frame of mind. Chief Justice Mead reported hearing complaints from other courts about lawyers appearing in T-shirts or even pajamas.
- >> Don’t touch your face during argument and avoid wandering.
- >> Practice using the same technology as will be used during the actual argument.
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