Ninth Circuit Does Oral Argument by Videoconferencing

Seems to have gone well, and I've heard good reports about another case, too.

|The Volokh Conspiracy |

At least judging by the Ninth Circuit oral argument video site, the video below seems to show the first such argument (held yesterday) stemming from the coronavirus lockdown; it is also also apparently the first time the Ninth Circuit has had an argument in which all the judges and all the lawyers appeared by video.

There are a few technical glitches, but on balance it looks like a normal oral argument, with relatively normal interaction between the lawyers and the judges—just without the travel time and costs, which I think will lead to more such arguments even after the epidemic blows over. (There are of course technology costs, but my sense is that, especially as the approach becomes more common, these will be dwarfed by the travel savings, especially in a court with a geographically large jurisdiction.) The judges and the lawyers were using Jabber Video.

Note that the Ninth Circuit has some extra experience with video participation by judges, because Judge Gould (who is on this very panel, the judge on the right) has multiple sclerosis, and thus generally appears by video. Other judges have also at times appeared by video, whether for health reasons or because a panel had to be convened in an emergency; and the Circuit had allowed lawyers to argue by video in the past if there was good cause. (One sort of good cause, I'm told, was if the lawyer asking for video argument was in Guam or the Northern Mariana Islands.)

I also talked to a lawyer who participated in another video oral argument, and here's what he told me (though he preferred that his name, the case, and even the court not be mentioned, and I use "he" here as a generic pronoun without trying to indicate anything about the lawyer):

  • The argument was set up using special technology provided by the court system, not using generally available technology such as Zoom.
  • "For this to work, the participants needed IT capabilities that were compatible with the court's system, but that didn't seem to be a major hurdle."
  • The argument "went off without a hitch."
  • "Because of a slight delay in the video feed, sometimes the judges and participants would inadvertently and briefly talk over each other, but it wasn't a major problem."
  • It was slightly harder to read facial expressions, because of the slightly fuzzy video quality, but again the difference wasn't huge.
  • Courts could continue with this going forward, even after the public health emergency is over. "I could absolutely see that they might start having remote hearings more commonly. It's cheaper, it's quicker, and it works."

(This post was updated after it was posted, to add some more details about the Ninth Circuit practice.)

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  1. I mentioned this possibility in a prior post. It has already been used for a while for some administrative hearings. (The one I am familiar with is the Trademark Trial and Appeal Board, but there are others.)

    Especially in a court like the Ninth Circuit that has a huge geographic spread, this certainly has advantages.

  2. “special technology provided by the court system”

    I am willing to bet you that it is not as good.

    Why re-invent the wheel?

    1. Security. All you need is one zoom password leaking out and all sorts of mischief can take place.

  3. This issue merits a broad, far-reaching examination of our existing civil administration of justice infrastructure. Questions:

    (1) Why should courthouses be located in big cities with all of their attendant logistical hassles, including traffic and parking? Particularly state courts of appeal, state supreme courts, and federal circuit courts of appeal? Not exactly customer service friendly. Perhaps courts should be more motivated to furnish outstanding customer service by sparing litigants the hassles of having to go to a big city.

    (2) Why shouldn’t judges bear the burden of travel? In a case where there are two small law firms located in the exurbs, why not force the judges to travel to one of the small firms’ office to hear motions or conduct conferences?

    (3) Why shouldn’t large, big-city firms bear the burden of travel? In a case in which there is a big city firm and a small law firm, located in the exurbs, why not force the judges and counsel for the big city firm to travel to the small firm’s office for hearings and conferences ?

    To be sure, I am all for logistical savings, but not at the expense of jettisoning in-person and face-to-face manifestations of petitioning government and access to the courts. In so doing, why not make the courts and those that represent big institutional players bear the burdens associated with travel?

    1. Libertymike: I’m a little puzzled here. (1) Litigants and those litigants’ lawyers are more likely to live in a particular big city than in a particular small town. The average cost of traveling to the nearest courthouse for an appeal is likely to be less if the courthouse is in a big city, I would think.

      (2) As it happens, state supreme courts tend to sit in state capitals (there are a few exceptions, such as California), and most of the most populous states have capitals that are actually not the biggest city in the state. That means that the firms in the biggest cities don’t have much of an advantage in trips to the state supreme court over firms in smaller places.

      (3) State courts of appeal tend to sit either in the state capital, or throughout the state. Federal courts of appeal do tend to sit in relatively large metropolitan areas, but in many circuits they sit in various places, so lawyers from a big firm will as often as not have to travel for an oral argument, e.g., from L.A. to S.F., even within the same circuit.

      (4) Judges, both appellate and trial, tend to hear several matters each day; that becomes much harder if they go to the parties’ offices.

      (5) Historically, court hearings have been public events that are supposed to be open to the public; I’m not sure that a typical firm would much welcome opening its offices to reporters, interested citizens, high school classes, and the like. Perhaps this could be avoided if the firm assures a live video feed is available, and if the legal system concludes such live video feeds are an adequate substitute for in-person access (maybe they are, but it’s not settled); certainly that wasn’t possible until a relatively short while ago.

      1. Whether more litigants and their counsel live in a particular large metropolis than in small burgs is open to question. What is not open to debate is that there are more logistical hassles associated with travel to big cities, including traffic and parking – even for counsel who work for big city firms who often must make the trek from a near suburb into the city for work.

        Sure, state supreme courts are located in state capitals, like Boston, Providence, Albany, etc. That this is so is no counter to my contention that the siting of state supreme courts and state courts of appeal should be more user friendly and that necessarily means siting them in places with easier accessibility.

        For example, take Massachusetts. It would be far less of a hassle for the average attorney and litigant and citizen if the Massachusetts Supreme Judicial Court were located in Westborough (metro-west, about 30 – 40 minutes west of Boston) or Bridgewater (about 45 minutes south of Boston) instead of Boston. How is siting a state supreme court or a court of appeals in Boston consistent with providing outstanding customer service? I think you are simply ignoring the traffic, the search for a parking space, and the cost of a parking garage.

        There is a significant gulf between the number of matters heard between trial and appellate tribunals. Why should the time of a judge be accorded more priority than that of a solo or small firm attorney who is representing private sector litigants? Are they not busy? Do they not tend to a myriad of matters upon a daily basis?

        Public, press, and citizen access is not enhanced with video hearings. Sure, I will grant that many firms would not be interested in having to accommodate reporters and high school classes.

        BTW, my questions also apply to all state agencies and to corporate headquarters.

        1. Whether more litigants and their counsel live in a particular large metropolis than in small burgs is open to question.

          One wonders if the commenter knows what the words “large” and “small” refer to in that sentence.

          1. The majority of Massachusetts residents live in the suburbs surrounding Boston, not in it or the other two largest cities (Worcester & Springfield). This isn’t California, the “Boston” water/sewer serves 60 other municipalities as well — and 60 “small” can collectively be bigger than the “big.”

        2. “For example, take Massachusetts. It would be far less of a hassle for the average attorney and litigant and citizen if the Massachusetts Supreme Judicial Court were located in Westborough (metro-west, about 30 – 40 minutes west of Boston) or Bridgewater (about 45 minutes south of Boston) instead of Boston. “

          You can partially blame the environmentalists for this — back in the early 1970’s they first decided not to build I-95 through Boston and then someone sued and got a judgement limiting the number of parking spaces in Boston on some BS air quality basis. But 50 years ago, people drove into Boston to do their shopping — there were four large department stores in Downtown Crossing (Winter/Summer/Washington Street intersection).

          The road currently labeled I-95 was built as Route 128 in the 1950’s and widely mocked as the “highway to nowhere.” The outer circle (I-495, which goes through Westborough) likely would never have been built but for both 90% Federal Money and the US Army wanting it for (now closed) Fort Devens. Prior to the 1990s, Westborough & Northborough were largely vacant land, etc.

          Historically, all the railroads (including several that don’t exist anymore) went to Boston — either North or South Station, and from there the BERy had good access to now destroyed Scully Square, which the SJC was adjacent to. North Station had an adjacent large hotel, I think South Station did too — and you’d arrive the night before and go plead your case in the morning.

          Cars changed things — but the courts didn’t — and what the Wuhan Virus may do is force changes that should have been made 20 years ago, if not 50 years ago. But you are arguing against history.

          1. I am arguing for common sense and a commitment to outstanding customer service – phenomenon to which the courts are allergic.

  4. Well, at least counsel won’t be at risk of being the target for one of Berzon’s famed projectiles. Oh, wait, she’s only known for throwing things in chambers. In open court, all she throws is shade.

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