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Most federal appellate courts are still conducting oral arguments, but with the lawyers and the judges all participating remotely. State appellate systems are not uniform in what they are doing about oral arguments. Advocates should definitely check repeatedly for the court's most recent coronavirus plan, as the situation remains very fluid. Currently, Connecticut has postponed arguments with no new dates scheduled and also has given parties the option of waiving arguments. Massachusetts has cancelled arguments for April and will decide cases on the briefs unless otherwise ordered by the court.
We thought it would be helpful to provide some advice to lawyers participating in the jurisdictions that are conducting remote arguments. Of course, the advice is general; different courts may vary in how they conduct the remote arguments, and the courts vary in size and procedures. Nevertheless, this advice should apply to all the remote arguments you will participate in.
Make sure ahead of time that your remote equipment is working properly. If possible, do a run through a day in advance of the scheduled argument. Also, most courts are streaming arguments live online and/or pre-recorded. For example, the U.S. Court of Appeals for the Second Circuit has established a website for oral arguments, which can be found here. Watch or listen to those arguments so that you know how yours will be conducted.
Many appellate courts use a light system that lets you know how much time you have left. It is likely you will not be able to see your lights if you are arguing remotely. The court will most likely still enforce the time limits, though. Have an electronic system set up on your phone or someone with you during your argument that will provide the same time guidance to you as the light system while you are making your argument.
Be even more concise than you would be in argument at court. The court will appreciate it if, at the beginning of your argument, you give it a roadmap and identify your major points and then address them right away. It is likely that the court will enforce time constraints even more strictly than if you were in the courtroom. Also, judges will have a list of questions and they will be concerned about having them addressed in the short time available.
Because you need to address the important issues right away, a good moot of your argument is even more important than if you were in the courtroom. That moot should focus on identifying the major questions the judges will likely ask.
It is possible, because of the difficult logistics the judges face, that you will receive fewer—maybe even no—questions. Thus, have a Plan B; be prepared to give your entire argument (or at least most of it) uninterrupted.
For more Day Pitney alerts and articles related to the impact of COVID-19, as well as information from other reliable sources, please visit our COVID-19 Resource Center.
COVID-19 DISCLAIMER: As you are aware, as a result of the COVID-19 pandemic, things are changing quickly and the effect, enforceability and interpretation of laws may be affected by future events. The material set forth in this document is not an unequivocal statement of law, but instead represents our best interpretation of where things stand as of the date of first publication. We have not attempted to address the potential impacts of all local, state and federal orders that may have been issued in response to the COVID-19 pandemic.
