LEGAL BLOG & NEWS

Quick Report From a Pair of Telephone Oral Arguments at SCOVA

I had my first two two telephone oral arguments in the Supreme Court of Virginia this morning. Merits arguments at that. They were weird! How so? Glad you asked:

Process. The Court scheduled six arguments this morning starting at 9:00–three before the recess, and three after. The Clerk’s office asked the lawyers arguing the first three cases to call in at 8:45 and the lawyers arguing the fourth through sixth cases to call in at 11:00. My cases were set to start at 11:15, so I called in with the second group. The Clerk, Doug Robelen, gave us a briefing and confirmed that our audio sounded okay. He asked the lawyers who weren’t participating in an argument to mute their phones. My arguments started at 11:15 and 11:45. Before each argument, Doug took a roll call to confirm that all the participating justices and lawyers were online. Since we did not have a timer or a podium traffic light, Chief Justice Lemons performed basic time keeping duties.

Setup. I called in using a headset and my VOIP system. The idea there was to get some freedom of movement without the audio issues that speakerphones entail. If I’d used a speakerphone, I would have taken Willy Jay’s advice and spread a towel over my table to reduce paper-shuffling noise. Unlike you BigLaw types, I do not have my own personal lectern, so a very formal banker’s box had to suffice:

(If you think this is shabby, I won’t tell you about my oral argument hoodie.) I kept my computer at another desk with my softphone on mute when I wasn’t arguing. I used my watch’s stopwatch function to time the argument. I don’t use the stopwatch app on my iPhone because the phone goes to sleep halfway through an argument. I’m sure that there’s an easy fix but finding it would cut into my bike time.

Takeaways. Here are some observations, in no particular order:

  • Great Job by the Clerk. First things first: The Clerk’s office did a fantastic job getting this thing up and running under trying circumstances. Overall, it worked beautifully. Huge compliments to Doug, Muriel Pitney, and everyone else involved.
  • Defense Against the Dark Arts. One of my arguments apparently had some feedback issues that didn’t seem to be coming from my end (because I’m told that they weren’t present during the soundcheck or my other argument). Not a big deal. The Court’s IT staff thought that it might be the result of another participant leaving his phone unmuted. That has some potential for mischief, no? If a lawyer can disrupt an argument by putting opposing counsel on speaker and forgetting to hit mute, then we need to police phone etiquette pretty zealously. We might also consider having a separate line for each argument. (To be 1,000% clear, I AM NOT SAYING THAT THIS IS WHAT HAPPENED TO ME. I don’t know what happened. I haven’t even listened to the audio yet. And I certainly don’t mean to imply that any of the lawyers in my cases did anything intentionally; I like the lawyers in my cases and I know that they’d never do that. I’m just suggesting that if this kind of interference is even a possibility, we should be mindful of it going forward. Or try Zoom. ;-))
  • Pacing. It is about 10x easier to handle argument stress when you can pace around your office while the Other Guy is talking. You can physically work off the tension and nerves while keeping your energy up. Big plus.
  • No Body Language or Eye Contact. This was really challenging for me. I speak quickly and wind myself up as I go. In person, I rely heavily on eye contact and body language to know when to shut up and let somebody ask a question. Without that input, I tried to slow down and take more time after my points, but I am not sure that I succeeded. At all.
  • No Routine. I am a creature of habit and routine. I have a definite routine for arguments in Richmond–same hotel, same meals, same bedtime, etc. All of that went out the window. I tried to make up for it by crafting a pretty comfortable setup in my office but it was still disconcerting.
  • Fewer Questions. The Court asked fewer questions than usual. (Or I didn’t give them enough room to jump in?)

So what’s the verdict? I was wrong: Telephone oral argument wasn’t as awkward as I’d feared. I hadn’t considered how comfortable it would be to work from my own office.

Live arguments are still better, though.