Given the current limitations on the ability to hold in-person oral arguments, the Connecticut Supreme and Appellate Courts have decided to begin hearing oral arguments via video conference. While remote arguments are not uncommon in federal courts, they are unprecedented in Connecticut’s appellate courts and will require significant adaptation and flexibility by the justices, judges and those arguing the cases. But this is a critical step to furthering the business of the courts, and returning our courts back to normal, even if it is a different normal for now.
Last week, I co-presented a CBA webinar: “Arguing Appellate Cases via Video Conference During the COVID-19 Crisis” with Attorney James Sexton. That webinar will be repeated this Thursday from 11:00AM to 12:30PM. Anyone interested can participate here: WEBINAR
As part of the Judicial Branch’s effort to ensure this process is accessible and effective, Attorney Sexton and I also participated in mock oral arguments yesterday before the Connecticut Supreme Court. Below are some of my thoughts on the experience, which I hope will help all involved to make the process smoother and more effective.
From the outset, this is a different experience. Unlike arguments at the Supreme Court where you do not see the Justices until they walk out and take their seats at the bench marking the opening of court, once you have signed into the video conferencing system the requested 10 minutes before argument, the judges will sign on shortly after. For a few moments, you are all in the same virtual room before court opens and the argument begins. This shared virtual environment takes some getting used to.
Once all Justices and counsel were in the video conference, Chief Justice Robinson asked if everyone was ready and then he opened court, as there was no marshal present. Make sure that your video is enabled, otherwise the Court will not be able to see you. When you speak, ensure that your microphone is turned on or the Court will not be able to hear you. If your client, or anyone else for that matter, is present in the room with you, you must inform the Court. Also, you cannot record the argument. The Chief Justice then read a significantly longer statement prior to the opening of court.
Once the Court is opened, the argument will begin. One significant difference that is immediately apparent is that the judges are not at their usual (and more comfortable) distance behind the bench, but appear close on the screen. The courts are using a Webex Meeting platform to conduct the arguments, which allows you to select several different view settings, so your view of the judges or justices will depend on the layout that you choose in Webex. I prefer the “All Equal”setting, as it presents all of the Justices and opposing counsel in the same size panel on the screen. You can see who is talking by the blue highlighting below the individual’s panel. Another layout is the ”Speaker Large” setting. In that layout, the panel for the person speaking becomes larger (when they begin speaking) than all of the other panels on the screen. The difficulty with that view is that it constantly juggles the panels on the screen, which can be distracting. Another option is “Speaker Only” which as its name suggests, shows only the speaker on the screen. I prefer to have the participants’ panels not move once the argument has commenced, although I do not believe that is possible currently.
Another distraction is the amount of information present on your monitor. In addition to the justices, you also have panels for opposing counsel, and yourself. You appear at the lower left of the screen. I used a Windows based machine, on which you need to either “pin” your picture or continue to move your cursor over your image lest you disappear. You need to concentrate on the screen in front of you so that you can see when a Justice raises his or her hand. With the current software, raising your hand means that the Justices physically raise their hands, it is not a “virtual” hand raise like it is on other platforms. One advantage to video conferencing is that, because your perspective is closer to the justices then you would be at an in-person argument, in my opinion it is easier to read the justices’ facial expressions in a virtual argument.
The process of being asked and answering questions was efficient and effective. When a justice has a question, that justice would raise their hand. When you notice the raised hand, you as the speaker should do one of two things. First, stop speaking immediately. Second, quickly finish your thought and then stop talking. What you should not do is continue rambling along for the next five minutes. (This advice applies to in person arguments as well, of course). When you have stopped speaking, Chief Justice Robinson will then recognize the justice. You should not “call on” the justice. The justice will then ask their question and then you may answer. It worked remarkably well and there was no issue of speaking over one another. In fact, after the argument, the Court specifically noted that there was no talking over one another.
The Court is still working out specific situations with questions, such as when a justice has a followup question and another justice has raised their hand. I think that the justices will work out some of these issues amongst themselves. Another issue came up when multiple justices raised their hands. When that occurs, Justice Robinson indicated that he would recognize justices by seniority. He did qualify that procedure a bit, stating that if a justice had his or her hand up before a more senior justice raised his or her hand, that he would recognize the more junior justice first. So, seniority may only be an issue if the justices attempt to speak at precisely the same time. Again, I think these issues will work themselves out over time, especially given the collegiality of our appellate courts.
The technological aspects were seamless. After clicking on the link that was provided, I entered the video conference without incident. The video and audio quality were very good, though that depends in large part on the speed of your internet connection. I used the speakers and microphone on my Microsoft Surface Pro and it worked flawlessly. The Court heard me and I was able to hear the Court clearly. The Court has indicated that they are amenable to headphones and a boom style microphone if that assists a presenter in making communication easier. As I noted, there is a lot going on on the screen, so I suggest using as large a monitor as you have available to you in order to make the process easier. I used a multi screen set up with a 24 inch monitor and my surface pro. That setup worked well. I was able to have my notes on one screen and see the Justices on the other screen. I think a tablet would be fine, but it will make viewing a little more challenging. I would not recommend attempting a video oral argument on a smartphone. If you want to discuss this more, please attend the webinar on Thursday.
How you present your argument is your choice. You should pick a room which is appropriate and not distracting, but which also allows you the necessary privacy. (Beware of windows because of both distraction and reflection). You can either sit or stand. The justices did not have a preference. You should ensure, however, that whatever you decide to do does not become distracting. In particular, if you are going to stand to present argument, consider remaining standing for the duration unless you can return to a seated position without causing a major distraction for the court. Remember that when you move
your camera must also move, or you will not be visible to the other participants. So if you are up and down and adjusting your camera to accommodate that, the judges are going to see a jumbled and perhaps chaotic image on your screen.
There were certainly some oddities to virtual argument which took some adjustment. For those who have been litigating any length of time at all, it is jarring that you are not required to stand when the justices “enter” or “leave” the virtual court room. If you have not presented an argument while seated, it is a very different experience. The sitting position was not particularly comfortable to me at the beginning but once I got started, it was fine. You should pay attention to your appearance on camera. As someone that speaks with his hands, I had to ensure that the Court was able to see them because of the narrow frame I was in. A corollary would be to ensure that your hands do not become all the Court can see.
You also need to ensure that, in addition to testing out your technology and equipment and internet connection ahead of time, you make sure to decide what your work area (including your “background”) is going to look like. Where are you going to place your notes and screen or screens (and your camera if it is not integrated into your computer screen). I set up a half an hour early and fiddled around with my camera placement, screen placement, and note placement. Also, make sure that you have water with you. I drank water during the presentation and the Justices were not distracted. You will also be expected to keep time, so bring a device that will assist in that regard.
One important thing to remember if that when your argument is over, you must turn off (“mute”) your microphone. There are a number of reasons to do this. First, for those people that are using the “speaker view,” any background noise might bring your picture to the forefront of their screen. (Remember, in speaker view, your screen is highlighted when you talk, or when your dog barks, or when your doorbell rings …). Second, if your cell phone and office phone or something else rings, you don’t want to distract the court, though hopefully you have taken steps to avoid such distractions before the argument started. During my argument, one of my partners called my office phone and my cell phone five different times. Having turned my microphone off, there were no concerns. It bears repeating that all of your devices must be off or on silent. During yesterday’s argument, I regularly heard a Microsoft Teams notification going off in the background.
Another difference is not having co-counsel sitting next to you in case you have questions or they would like to pass you a note. I tested out both Microsoft Teams and texting and both were successful with minimal distraction. That being said, you also should ensure that whatever device you’re going to use to communicate with co-counsel is set up appropriately so that it is not distracting and you can read the screen without moving away during the argument.
As the appellant, when you have finished your argument you want to make sure that you have a clear space for a notepad so that you can take notes while your opponent is speaking. You’re also going to want to make sure that in preparing for rebuttal, you don’t do anything that is particularly distracting to the court. One of the questions that we fielded at last week’s webinar was whether you could turn your video feed off. As of yesterday, the answer from the court was no, please don’t turn off your video feed just turn off the microphone. I would think that you would want to maintain a presence before the Court even if you are not speaking.
All in all, the process went well given the necessary preparation ahead of time. Preparation, as always, is the key, so try mooting your case though video conferencing to fine tune how you wish to handle all of the issues discussed above. Make sure to note how your background looks and whether you need to speak louder or softer. Having the opportunity to further cases while ensuring everyone’s continued health is an important and laudable goal. Video conferencing oral arguments are an excellent way to start opening up the courts again.