Longtime readers know that I’m a huge fan of oral argument. Giving counsel a chance to address the Court’s questions before the decision conference strikes me as vital.
But for obvious reasons, recent events have complicated courts’ efforts to hold argument.
It’s been fun to follow the workarounds that they’ve applied. A few basic strategies emerge:
- Postpone oral argument. SCOTUS and SCOTX took this approach. Appealing in its simplicity.
- Hold oral argument by videoconference. The Ninth Circuit the North Dakota Supreme Court are doing this. I have to admit: It’s fun to see some of the justices all robed up at home. But I’ve got just enough experience trying to teach a law school class by Zoom to get a headache looking at this screenshot:
Holding arguments during a pandemic. https://t.co/htobKbQLfb pic.twitter.com/VnwRqgACDR
— Jerod Tufte (@JudgeTufte) March 24, 2020
- Hold oral argument by teleconference. SCOVA did this for its recent writ panels, and the Eleventh Circuit said that it would hold arguments by phone on the week of March 30. I can see this working with a panel of 3 judges or justices. I can also see it being a disaster with an en banc court.
- Dispense with oral argument. Our beloved Fourth Circuit, notoriously stingy with oral argument in the best of times, postponed oral argument on March 17-20 and suspended its local rule providing that it will issue published opinions only in cases where it has heard oral argument for March and April. It looks like the First and Fourth Departments of New York’s Appellate Division are also considering cases on submission.
- Wait and see. We are still waiting to hear from SCOVA about the April merits arguments. The Tenth Circuit is considering arguments set for April and May on a case-by-case basis.
To be clear, this post is not the result of any kind of systematic study. I just pay attention to this stuff on Twitter. I’d love to hear how other courts are handling this.
All this naturally prompts a follow-up: Which option is the best way to go?
I’m an oral argument purist. I think the discussion is invaluable and I doubt that it can be adequately replicated by teleconference or videoconference. So if I were running things, I would follow the lead of SCOTUS and SCOTX and postpone arguments. Second choice would be videoconference.
After that, I’m honestly not sure if I’d rather argue a case to seven justices over the phone or just have it decided on the briefs.
Update 4/2/2020
The Twitterati tell me that CA7 is holding telephonic oral arguments, and that the Minnesota Supreme Court is holding virtual oral arguments. I appreciated this post:
All ready in my home office for our first MN Supreme Ct virtual oral argument – robe and all. #mncourts #AppellateTwitter pic.twitter.com/HrqVV7TxxA
— Paul Thissen (@paulthissen) April 1, 2020
I also appreciated the generous feedback that Justice Thissen gave the participating lawyers a few hours later.
And finally, CA4 announced on April 1 that it was postponing its May 5-8 oral argument session. The court explained that “[c]ases tentatively calendared for May 5-8, 2020, will be continued for argument at a later session, scheduled for argument by video-conference or teleconference, or submitted on the briefs, at the direction of the panels in each case.”