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By: Philip Savrin
The COVID pandemic has impacted the practice of law in many ways including moratoriums on jury trials, conducting depositions remotely on ZOOM platforms, and courthouses being closed to the public. For the most part, however, the appellate courts have continued to function with modifications made to allow lawyers “appearing” before a panel of judges by telephone or through virtual means. Some courts have even granted specific requests by having one of the parties appear in person while the other is on a computer screen or having one of the judges appear virtually while the other members of the panel are in the courtroom.
Although these accommodations have allowed appellate proceedings to move forward they are far from the ideal format for presenting oral argument to the judges who will be deciding the outcome of the case. Even though the facts have been set forth in a written brief that includes detailed legal arguments, oral argument is an opportunity to give context – and sometimes even emotion – to the positions asserted. It also allows advocates to hear specific concerns that the judges may have about the facts or law and to explain the practical implications of deciding the case in one way as opposed to another. All of this takes place within the 15 to 20 minutes that most courts accord to each side after which the case is taken under submission for the final decision to be made.
With all this in mind, the inability to appear in person before the panel of judges makes the task of reading their reactions that much more difficult to do let alone adapt the arguments to address their concerns. Virtual presentations are certainly preferred over telephonic means but both are a far cry from being able to appear in person.
Unless and until appellate arguments return to “normal” additional consideration will need to be given to the manner of presenting the argument and not just the content.