Appellate Judges on Remote Arguments

Marcia Coyle has this article in the National Law Journal (free registration required), titled Appellate Judges, Including Justice Breyer, Reflect on Remote Arguments in Virus Era.

In the pandemic era of remote oral arguments, audio is good, but audio-visual is better, although both come with a significant cost of reduced or eliminated eye contact, federal and state appellate judges said in a recent survey.

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.

This comment by Justice Breyer gave me a “CSM moment” (chuckling softly to myself, as distinguished from LOL):

Commenting on the Supreme Court’s audio-only remote format, Breyer said having a designated amount of time for justices’ questions encouraged more participation by all members of the court, required the justices to form succinct questions and “to listen carefully to what the responses were.” Breyer said the format produced shorter, crisper, more succinct answers from lawyers.

Praise for “requir[ing] the justices to form succinct questions” is funny considering the source. Justice Breyer is notorious for rambling discourses that leave the lawyer wondering, “Um, was there a question in there somewhere?” I sometimes wished the Supreme Court had Alex Trebek on staff to say, “Sorry. That’s not in the form of a question. You lose.”

I think the greater participation by all members of the Supreme Court is great improvement over the prior free-for-all format. We heard too much from the pushiest members of the Court and not enough from those who found the donnybrook distasteful, especially Justice Thomas. I hope the new procedure survives when live arguments resume.

At the end of this article, we have these tips:

> Hard-wired, broadband internet access is more stable and consistent than hot spots.

Thank you, Captain Obvious.

> For audio-only arguments, landlines have less static and fewer interruptions than do cellphones.

Ditto.

> 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.

Pajamas? Sigh. I can remember a time when a lawyer risked contempt by showing up in anything less than a jacket and tie.