What Are Courts Doing?

Selected Excerpts From Articles About Remote Oral Arguments

  1. Telephonic Oral Arguments – United States Supreme Court

“ . . . those arguments no longer present the largely unstructured free-for-all in which the justices compete with one another to ask questions and the advocates struggle to answer before being abruptly interrupted over and over again. Instead, the high court’s telephonic arguments have resulted in a procedure whereby, after brief introductory remarks from the advocate, each Justice is recognized individually by the chief justice to conduct a few minutes worth of questioning before moving on to the next questioner. This new format certainly has its own pluses and minuses. Justice Clarence Thomas has become a full-fledged participant in the court’s telephonic oral arguments, to the delight of many. Statistics compiled by Adam Feldman at his “Empirical SCOTUS” blog show, surprisingly, that the advocates are speaking more under the new format than they had been speaking during in-person oral arguments. And no doubt the biggest plus is the general public’s historic ability to listen live to the argument of cases pending before the nation’s highest court.

“On the minus side, the new oral argument structure prevents advocates and the justices from developing momentum in discussing major points at oral argument, as the telephonic questioning tends to be more disjointed as each justice can focus on whatever matters most to him or her. And it is difficult for the justices to fully explore the questions of most concern to them and for the advocates to have the benefit of sustained follow-up questions from any single justice.

“Nevertheless, the organized manner in which the U.S. Supreme Court is conducting its telephonic oral arguments does address one major concern with that method of appellate oral argument: the lack of visual cues preventing the advocate from seeing if a justice is about to ask a question or is satisfied or unsatisfied with the advocate’s answers to previous questions. The free-for-all method of appellate oral argument, whereby judges interrupt the advocate at will, works well for in-person argument but threatens unintelligible cross-talk during telephonic argument.”

Read more:   https://www.law.com/thelegalintelligencer/2020/05/11/the-virtues-of-virtual-appellate-oral-arguments/

 

  1. Telephonic Arguments Supreme Court and Elsewhere.  Mixed Reviews.

“Since the beginning of the pandemic, the court – which has often stayed open and heard argument even when inclement weather or budgetary constraints shut down other government institutions – has been operating in relatively uncharted waters. As Tom Goldstein discussed on the blog last month, the closest analogy may be the Spanish flu of 1918, which prompted the justices to postpone oral arguments for approximately a month in the fall of that year. But the Supreme Court of 2020 has one advantage available to it that the justices of 1918 did not – modern technology.” many state supreme courts and lower federal courts around the country have responded to the pandemic by holding arguments remotely. Some, like the U.S. Court of Appeals for the District of Columbia Circuit, held oral arguments by telephone, while others – such as the highest courts in Michigan and Texas – relied on video-conferencing platforms such as Zoom. In each of these courts, the public could listen to (for the D.C. Circuit) or watch (for Michigan and Texas) the oral arguments in real time.  The initial experiments with remote arguments did not go off seamlessly. . .

Read more:

Courtroom access: Faced with a pandemic, the Supreme Court pivots

  1. Kansas Court of Appeals

Holding their first “virtual argument.”  Case involves a dispute over gas well revenue. “Kansas courts are committed to delivering timely justice, especially during challenging times such as we are experiencing now,” said Karen Arnold-Burger, chief judge of the Court of Appeals. “We decide many cases on their written record, but some attorneys want the opportunity to argue their cases before the court, and oral argument by videoconference allows us to accommodate them.” The Court has allowed attorneys to appear over videoconference since 2016, but this will be the first time the judges will also call in from separate locations.  The arguments will also be livestreamed over the Court’s YouTube channel for the public to view.

https://www.wibw.com/content/news/Court-of-Appeals-to-livestream-virtual-oral-arguments-570330901.html

  1. Louisiana Fifth Circuit Court of Appeal

The Louisiana Fifth Circuit Court of Appeal became the first Louisiana appellate court to hear oral arguments remotely when it successfully heard six arguments this week via the videoconferencing application, Zoom. Participating from their respective homes and offices, all eight Judges and fourteen attorneys convened in virtual courtrooms to argue the six cases

Read more: https://wgno.com/news/louisiana-fifth-circuit-court-of-appeal-first-to-hear-argument-via-zoom/

  1. Maryland Court of Special Appeals

Oral arguments for May 2020 and June 2020 will take place remotely using Webex as its platform. To

help litigants familiarize themselves with Webex, the Court’s Clerk will offer test Webex sessions a few days prior to scheduled argument.   Counsel who have not previously used Webex are strongly encouraged to participate in one of these test sessions. Public access to arguments held remotely will be provided by posting a recording of the argument on the Court’s webpage as soon as possible after arguments have concluded.

Read more:  https://www.courts.state.md.us/cosappeals

  1. Florida Courts of Appeal

“Florida’s appellate lawyers and judges are at the forefront of utilizing technology to prevent the annihilation of oral arguments—a practice that both sides crave.”

https://www.law.com/dailybusinessreview/2020/04/28/transitioning-from-in-person-to-remote-oral-arguments-in-fla-appellate-courts/

Impact of Epidemic on Court Operations

  1. New York

“New York state court officials . . . reported 168 confirmed cases of COVID-19 among its court employees, including 17 judges — two of whom have died.”

Justices Johnny Lee Baynes  and Noach Dear and, Justice Baynes died.    Justice Baynes died on March 26 after serving nearly three decades on the bench.  Justice Dear served as a New York City councilman from 1983 to 2001 before taking the bench in New York City civil court in 2008.

Read more:  https://www.law360.com/legalindustry/articles/1267819/covid-19-sickens-17-judges-over-150-court-staffers-in-ny

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  1. Georgia. COVID19 spreads through the Dougherty County Courthouse

An infected juror potentially exposed the entire jury pool, the prosecutor, the defendant and his lawyer, court bailiffs, the judge and her court reporter and other court personnel.  While the DA in the criminal case did not recall the juror displaying any signs of illness, the juror sent a note to the presiding judge on the third day of trial.   Thereafter, staff throughout the courthouse began testing  positive for the virus. County Probate Judge Nancy Stephenson died.   Her husband, Dougherty State Court Judge John Stephenson became ill with the virus.

Read more:  https://www.law.com/dailyreportonline/2020/04/07/juror-zero-how-covid-19-spread-through-the-dougherty-county-courthouse/#

  1. Indiana – Virtually empty: Courts try to keep dockets moving amid pandemic

“Like the rest of the world, the judiciary has been walking a tightrope for the last six weeks, trying to keep courts open while protecting judges, staff, lawyers, litigants and the public from COVID-19 exposure.

“The solution, as in most other professions, has been a transition to remote work, though that transition has not been total. Some judges still have come to court every day, working alongside a skeleton staff to keep dockets moving. Some clerk’s offices have remained open, too, offering limited access to public services all while adhering to social distancing guidelines.

“Also like the rest of the world, the judiciary is grappling with the question of essential versus non-essential services. Which hearings can be continued, and which must continue to honor defendants’ rights?

“And then, of course, there’s the future. As society begins to reopen, how quickly can courts restore operations to full capacity? What will all of the continuances mean for already heavy caseloads?”

Read more:   https://www.theindianalawyer.com/articles/virtually-empty-courts-try-to-keep-dockets-moving-amid-pandemic

 

  1. Florida. Florida Chief Justice appoints 17- member group to develop plan for a return to normal court operations.

https://www.law.com/dailybusinessreview/2020/04/22/for-safe-return-task-force-to-guide-gradual-reopening-of-florida-courts/?slreturn=20200413125158