The widespread pandemic shutdowns that swept the nation starting in mid-March did not spare appellate courts or practitioners. But like the rest of the legal profession, appellate judges and lawyers have adapted to the circumstances. Appellate business continues, albeit with a few new operating methods.

To be sure, some things have not changed – or maybe even got better. Much of an appellate judge’s workday involves reading briefs and writing opinions. The same is true of law clerks. Appellate practitioners similarly spend a good deal of their time in solitude, researching and analyzing the law in online databases, reviewing electronic case records, and writing briefs. Before, these activities happened in a law firm’s offices. Now, they happen in a home office or maybe at the kitchen or dining room table. And wherever it happens, appellate opinion and brief writing always command blocks of uninterrupted time to get “in the zone” – that happy place where the words really flow. For some, working free of office distractions has been a boon for writing focus. And while there remains the need for collaboration, that already happened over the telephone at least some of the time. Now it always does.

Appellate courts also have been issuing opinions and accepting briefs mostly without interruption. These courts, by and large, already embraced modern technology before the pandemic. Most issue opinions and accept briefs electronically. So it has been opinion- and brief-writing as usual. Some courts entered general orders extending case and filing deadlines and suspended paper copy requirements. But aside from these modest changes, the written work has continued apace. Appellate courts – particularly mid-level error-correcting courts – always have a heavy burden of work, and they recognize the need to keep cases moving and avoid a backlog of inventory.

Oral advocacy has been a different story. Before the pandemic struck, appellate oral argument was almost universally a traditional, in-person exercise. (Notable exceptions include the late Third Circuit Judge Ruggero Aldisert, who participated by video monitor after he moved to the West Coast for health reasons.) When COVID-19 arrived, appellate courts at first canceled or postponed oral arguments. But the courts knew cancellation and indefinite postponement were not long-term solutions. So they began conducting proceedings by technical means. In the U.S. Supreme Court, that meant telephonic argument. The Pennsylvania Supreme and Commonwealth courts have conducted arguments over WebEx and live-streamed them on YouTube. The Pennsylvania Superior Court at first held argument by telephone, and then moved to video. Many appellate courts are using one or an amalgamation of these methods.

Techno-argument is not as good as the real thing. Judges and practitioners cannot see one another well – or at all. That makes it hard to pick up on non-verbal cues. People inadvertently talk over each other or leave themselves on mute. To assuage these problems, some courts, like the United States and Pennsylvania Supreme Courts, have their Chief Justices play the part of air traffic controller, calling on each justice for an allotted few minutes of one-on-one Q&A with the advocates. But these minor issues aside, electronic oral argument proceedings have gone surprisingly well. The Commonwealth Court has even conducted more than one original jurisdiction injunction proceeding over video. In those cases, the judge, court reporter, witness, and counsel each appeared in a single grid on YouTube.

For their part, practitioners have adapted by learning a series of electronic oral argument best practices and tips and tricks, like these:

• Mimic the in-person argument experience as much as possible. Stand for the argument. Buy a table-top lectern or make one from available furniture, books, or boxes –  making sure that what you build is stable.
• Lay a towel on your work surface, and then put everything – telephones, stopwatches, briefs, and papers – on the towel. This limits ambient noise.
• Get a separate USB camera and microphone, or combo unit. Do not rely on your laptop camera. It is probably of less quality, and it depicts you from below – an unflattering angle. Place your camera in your eyeline, so it appears you are looking at the judges when you speak and not off in another direction.
• Avoid virtual backgrounds. They can distract and create a halo effect or obscure part of your head or face. Better to have a simple-looking wall or bookcase behind you. Also, check the lighting. If there are too many shadows or you appear in silhouette, consider repositioning yourself or the room lights or buying a lightbox.
• Use the quietest room in your home. Station your spouse or teenager (the latter may require a small fee) to serve as the front door “guard” to prevent FedEx or UPS drivers from knocking on the door or ringing the doorbell, sending Spot into a barking frenzy. Also, consider sending Spot and a family member out on a hike.
• Practice with a colleague for comfort and to test electric, battery, and WiFi connections and sound and video quality. Perhaps even connect with opposing counsel for a test. That way, you ensure neither of you will consume argument time or distract the court with technical problems.
• Dress as you would for in-person oral argument. Wear solid and neutral colors and avoid busy patterns. This will prevent excessive contrast, a pixellated look, or the appearance that the fabric of your clothing is moving.

Only time will tell if practitioners will need these best practices when things go back to normal (whatever “normal” might be). But given circumstances forced the appellate courts to adapt by using technology-assisted oral argument, many judges are now used to it. Some appellate judges are interested in keeping video arguments in the “toolbox” going forward. It is foreseeable that a court might use it in unusual circumstances – such as in an expedited case, where geography separates the participants, or if there is severe weather. It thus may be that these technological methods end up as permanent features of the appellate courts – not just temporary ones.

About the Author
Karl is a leading Pennsylvania appellate lawyer who has personally argued and briefed numerous precedent-setting cases before the appellate courts of Pennsylvania and other jurisdictions. He maintains a particular focus on cases before the Pennsylvania Supreme, Commonwealth and Superior Courts, as well as the United States Court of Appeals for the Third Circuit, including litigation involving state and federal constitutional challenges, Pennsylvania Right-to-Know Law requests, government contracting and bid-protest disputes, insurance insolvency and regulatory matters, state administrative agency disputes, complex commercial actions, and many other types of civil cases. Karl has served as counsel of record in hundreds of cases before Pennsylvania’s appellate courts.

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