By William Cracraft, Communications Specialist
The United States Court of Appeals for the Ninth Circuit has been posting videos of appellate courtroom proceedings for 10 years and streaming video of oral arguments held in court for much of that time. Now, due to COVID-19 restrictions, each oral argument stream is a convergence of videos from a variety of locations: lawyers’ offices or homes and judges’ chambers or homes. En banc proceedings, requiring over a dozen feeds to make up the hearing, are even being held.
According to a survey sent out in late August by Molly Dwyer, clerk of court for the Ninth Circuit, the video process is well-established and is getting an important job done, but all parties look forward to meeting in person, again. The survey was sent to about 300 lawyers who have participated in the video arguments; 219 responded.
“We stream all of these hearings live,” said Dwyer, “the same way we streamed them live when they were coming from courtrooms. Because we were already doing this before the pandemic, we haven’t had any issue maintaining our already excellent public access.
“I think arguments are going well,” said Dwyer, “especially once we switched to Zoom. That is far easier for both lawyers and judges to use and reduces the time staff needs to spend walking the lawyers through the pre-argument set up and checks. We’ve had a couple of technical glitches but nothing major, and nothing that we couldn’t fix. The judges and lawyers have all been exceedingly patient and flexible with the process. Our clerk’s office and AV staff have been creative, flexible and patient as well,” she added.
The first COVID-driven remote hearings were held the week of March 23. Between then and the end of April, 64 arguments were heard over 51 days. May, June and July saw another 371 arguments over 119 days. Eighty-five percent of participants did so via video connections, the rest via audio (phone) connections.
The survey revealed one clear indication of success: the change from mostly submitted arguments early on to most argued orally, now. In April, about 50 arguments were made orally, as opposed to about 110 submitted. By July, there were about 135 oral arguments to 120 submitted.
Krissa Lanham, deputy appellate chief in the United States Attorney's Office in Phoenix, has participated in one streamed argument, has another one scheduled soon and has prepped lawyers in her office for 11 cases. She generally likes the streaming solution.
“My video-streaming oral argument experience was excellent,” said Lanham. “Court IT staff were very accommodating and easy-to-work-with, and judges and counsel were more relaxed, which led to a better conversation about the case. Counsel can maximize their efficiency and provide better service to clients when they are not having to spend hours traveling.
“Because I am located in Phoenix, oral arguments for my office are typically scheduled in San Francisco or Pasadena,” said Lanham. “I really liked streaming from my office because it meant that I did not have to travel away from my family the day before argument, and it was much cheaper for my office because they did not have to pay for travel expenses. It was overall a much more relaxing experience than traveling for argument, and I believe the reduced stress led to a more open conversation with the judges.”
Lanham noted no downsides to streaming video from remote locations. “I would strongly encourage all lawyers to participate by video teleconference rather than telephone,” she said. “Participating by telephone sometimes leads to strange situations in which the lawyer cannot ‘read’ the judges or opposing counsel effectively. Apart from that, I would not change anything.
“If it is not placing too much of a burden on the court’s administrative staff, I hope that the judges will consider continuing to offer video streaming as a possibility for future oral arguments when both counsel in a case would be traveling from other locations. Given the geographic expanse that the Ninth Circuit covers, it is well-positioned to lead the way on video streaming even after the pandemic.”
In the survey, lawyers reported reasonable satisfaction with the remote hearings, with 47 percent stating the experience was similar to in-person proceedings, while 15 percent said remote hearings were better. A sizable number, 29 percent, said remote hearings were worse than in-person, while 9 percent said the remote hearings were much worse.
However, the survey revealed that a large proportion of participants thought the level of engagement was similar or better than in-person arguments. While only 14 percent said the level of engagement was lower, 78 percent said it was similar to in-person proceedings and 8 percent said they thought engagement was higher than in-person hearings.
When lawyers were asked if they would appear remotely again, the splits were greater, with 13 percent saying they would appear anytime remote hearings are offered, 32 percent said they would only participate due to the current or another pandemic, 37 percent said they would appear if the opposing counsel was doing so, while 18 percent said perhaps they would appear remotely.
A clear bright spot in the survey shows 74 percent of lawyers surveyed rating the technical assistance offered by the court as excellent, with 21 percent calling it very good, and only 5 percent said the technical assistance needs improvement.
Lawyers were queried on the quality of the instructional material provided for remote arguments with 90 percent reporting it as excellent (59 percent) or very good (31 percent). Only 8 percent rated instructional materials as okay, and 2 percent as needing improvement.
Overall, 50 percent of the respondents rated the effort as excellent, 34 percent as very good, 15 percent as okay and only 1 percent said the overall effort and experience were as unsatisfactory.
Lawyers taking the survey were able to make suggestions and a number did so. Those suggestions included providing a backup plan in case something goes wrong, advising all parties to adjust lighting and cameras, and to test the equipment, as some of the notable issues concerned audio for both counsel and judges.
Other suggestions included sending links at least two days prior to the event, offering trial runs using breakout rooms, and providing a sense of timing on the day of the argument. One lawyer closed with a thank you for making a stressful experience much less stressful.
Dwyer noted the survey helped the clerk’s office refine their processes. “We have made some changes in response to some of the concerns raised and hope that the experience is now more reliable and seamless for most. In general, lawyers are pleased and prefer video to phone,” she said. “The only request is that we suggest headsets since sometimes the audio is difficult. They reported that everyone seemed engaged and several specifically commented that they enjoyed the ‘less formal’ environment.
“I think it is safe to say that lawyers and judges are pleased that we are able to continue deciding these cases and that the video arguments are going well. A fair number of lawyers indicated they would be open to continuing with video arguments in some cases once we get past the pandemic, as long as all the lawyers would be participating that way. I also think it is fair to say that judges and lawyers miss and prefer in-person arguments,” Dwyer said.
Harini P. Raghupathi, an appellate attorney at Federal Defenders of San Diego, Inc., a private, nonprofit organization representing financially eligible people accused of federal criminal offenses, has participated in one streamed oral argument. “I appreciate the efficiency of the streamed argument, as it cuts out the travel time up to Pasadena and back down to San Diego,” she said.
“I still prefer in-person arguments and hope the Court will consider resuming them once it’s safe to do so,” she said. “The streamed format makes it feel like less of a discussion among four people (the panel and the advocate), and more of a seriatim conversation with each judge. It is also more difficult to read the subtleties of human expression over (video). Additionally, not being in the same room makes it easier for people to unwittingly interrupt each other.
“As an advocate, I worry about what would happen if I experienced connectivity/technical issues on the day of the argument. Perhaps the Court already has instructions for what to do in that case, but I don’t recall seeing them before my streaming argument. My suggestion would be to make those emergency instructions more accessible/available.”
Elizabeth White, appellate chief, U.S. Attorney’s Office, District of Nevada, noted positives and negatives in video proceedings. “I think I’ve only had one (video) argument myself, but my office has probably had close to ten,” she said. “We’ve all done the arguments from the U.S. Attorney’s Office, using our office’s video tele-conferencing system so we can be set up with a podium in a conference room. The main benefits I see are not losing work time to travel and being able to have a huge spread of materials in front of you (notes, briefs, cases, ER) outside the frame of the camera.
“That said,” White continued, “I really miss being in the courtroom, seeing the judges face-to-face. The technology is great, and I’ve been impressed with how seamless the video arguments can be, but it cannot fully replicate the in-person experience. I do hope that once the pandemic is over, the court will resume in-person arguments.”
“Until then, I can’t think of anything I would change. I commend the Court’s IT staff for the way they have handled all of this. They have been tremendously responsive, which has made the entire process much easier,” she added.
