WRIT ARGUMENT TOMORROW?
WHAT TO EXPECT; WHAT TO DO
(Posted March 30, 2020) If you have a writ-panel argument set for tomorrow, you received a notice from the court giving you a choice: Consent to argument by audio-conference, or waive argument. The court didn’t give you Option C, postponing the argument until social distancing is no longer necessary.
If you chose argument by telephone, you may be facing a new experience. I know that I am; tomorrow I’ll deliver the first appellate oral argument of my life without being able to see the justices. While that may feel odd, I suspect I’ll adapt once I get going.
Since I’m not exactly an old hand at remote argumentation, I asked a pal, who prefers to remain nameless, what hints I could pass along to you. Here are his suggestions:
- When you dial in, the court’s directions are that you mute your phone. Keep it muted until the court calls your case. If you don’t, the court will be able to hear you shuffling papers and clearing your throat while it’s trying to listen to someone else’s argument.
- When the court calls your case, remember to unmute your phone! If you begin speaking without doing that, the panel will hear dead air (assuming everyone else has properly muted). If that continues for long enough, the court may conclude that you aren’t on the call, and you’ll forfeit the argument. That doesn’t mean that you’ll lose the appeal, but you won’t get the advantage of being able to address the court’s questions. That’s the most important aspect of any oral argument.
- When you begin your argument, resist the temptation to shuffle papers on your desk. Those, too, interfere with the court’s ability to hear you.
- Slow down a little, and include brief pauses from time to time. This gives the court the opportunity to break in with questions – and you never want to miss those. When you appear in person, you often get visual clues that a justice is about to ask a question; this is all audio, so you won’t have that added guidance.
- Get a timer ready in your office. You have ten minutes to argue, and you won’t be able to see a yellow or red light in the courtroom when you’re sitting in your office. If your cell phone has a timer feature, preset it to start at ten minutes, and try to remember to start it when the court calls your case.
Here are a few additional items that you should keep in mind. First, if you or your adversary arranged for a court reporter to take down the argument, you’ll need to mention that to the court at the outset of your argument. Yes, you have to spend some of your precious ten minutes accommodating your adversary. Do it anyway, and be assured that the court will likely give you four or five extra seconds if you run out of time after having done that.
Second, be sure to introduce yourself. Do it even if the court calls your case in this way: “Next is Sara Smith v. Joseph Jones. Ms. Wilson, we’ll be happy to hear from you now.” Start your argument with, “Good afternoon; I’m Jane Wilson, and I represent …” Yes, they probably can figure out who you are, but this is a matter of courtesy. Do it.
Third, expect some moments where two or even three people are talking at the same time. That occasionally happens in the courtroom, but it’s more likely to happen here. Just know that, like the driver of the car entering a major highway from a minor road, you don’t have the right-of-way. You must yield. Listen to the question and then answer when the jurists stop speaking. If you get two questions at once, do your best to answer each of them in turn. (This advice holds true even during in-person arguments, but it’s even more crucial now.)
Now for some answers to, or perhaps ill-informed speculation on, your likely questions:
- Will the justices all be together in the panel room for the argument, as they do when I appear in person? Maybe. But if they follow the example of That Other Supreme Court, the one across the Potomac, they may be dialing in just like you are. SCOTUSblog is reporting today that at last Friday’s conference at the high Court, only Chief Justice Roberts was present in the court building; the other justices dialed in, to comply with the CDCP’s social-distancing guidelines. Their Virginia counterparts may or may not do the same, but that shouldn’t affect the dynamic of the argument.
- What if I’m not familiar enough with each justice’s voice, so I’m not sure which of them is asking the question? In theory, you could ask, “Which justice am I addressing?” before responding. But I think that’s bad form. The better approach is to go ahead and answer the question without worrying about who the “author” is. If you’re wondering what to call the person who asked you the question, remember that “your Honor” is always good form.
- Will this slow down the rate at which the court rules on this batch of petitions? Again, maybe, but that’s likely a function of how much onsite staff there is in the Clerk’s Office. (I suspect that they’re operating with a somewhat reduced in-office staff.) You should expect that, as usual, the writ panels will confer that afternoon to decide which petitions to grant. After that, you can expect to get a result anywhere from 3-4 business days to 3-4 weeks later. In my experience, 1-2 weeks is the likeliest span, but that’s the case in normal times.
- I want to listen to the Bad Guys’ argument. How can I do that? Here are the instructions from the Chief Staff Attorney’s Office on listening in: “We ask that co-counsel who are not arguing and clients listen to oral arguments by using the following links that are available at our webpage www.vacourts.gov. Click on COVID-19 Appellate and Local Court Information, then select March 31, 2020 Writ Panels. There, each panel is listed with links to the dockets and live-streaming audio feed. It is best to listen through Chrome, Firefox or Microsoft Edge.” The only drawback of this approach is that, unlike in-person arguments, you can’t throw spitballs at your adversary while he’s at the lectern; but you’ll deal.
- The notice that I received says I have to dial in half an hour before my designated argument hour. I’m the last case on the 2:00 docket, so I should be called just before 3:00. Will it be safe to dial in at about 2:30? No. No! No matter how far down the docket you are, you’re in the 2:00 batch. That means you need to dial in by 1:30. But that means I’ll be on an unendurable hold for maybe an hour and a half! Suffer. You’d be doing the same thing if you appeared in court in a “normal” writ session, and unlike that, you can go to the bathroom (do it quickly) once someone else’s argument starts. Plus, unlike the crowded panel rooms that accommodate only 14 persons in the gallery, you’ve got plenty of room in your home or office.
Here’s a suggestion: Dress for court. Yes, I mean it. This is audio-only, so the justices won’t know if you’re in your best suit or your pajamas. But you’ll feel the difference as a matter of professionalism, and that difference will reflect the formality of the occasion. Now, I’d probably prefer to be dressed in a pair of Levi’s and tennis shoes – I plan to be buried in Levi’s and tennis shoes – but I’ll wear a suit tomorrow. I may even ignore the Governor’s directive to his staff to eschew neckties, which (I never thought of this) harbor lots of germs. I’ll be dressed like a lawyer, even if no one in Richmond can tell.
I’ll conclude with a request to those of you who argue tomorrow. I’d be very grateful to receive a short e-mail from you afterward, describing your experience. There may be, indeed probably will be, angles that I’ve missed here. If so, I’d like to post a revised edition of this essay, for the benefit of future “tele-arguers.” You’ll be doing a public service.
For tomorrow and beyond, be ready, be persuasive, and be well.