Zoom/Skype/Etc. Oral Arguments in Appellate Cases?

Do any of you know whether any courts are trying to do this because of coronavirus, or have been trying to do it more broadly? I would think it should be nearly trivial to do, with no extra hardware expense or technical development: Just have the judges and the parties sign on to a Zoom session (or some such video system), and record the video for prompt posting on the court's web site, which many courts already do. (The publicly available video recording would, I think, satisfy any requirement of public access to the arguments.)

This would be good for public health these days, especially since it will cut down required airplane travel for lawyers, judges, and law clerks. (In many courts, especially federal circuit courts, many judges' chambers are far from where the arguments take place.) And of course it will save judges' and lawyers' time, and thus money for clients.

Perhaps this isn't good for trials, where physical presence may be an important part of cross-examination, arguing to the jury, and the like; but it should be just fine for appellate argument, and for legal argument in trial courts as well. Might this outbreak be a good opportunity for experimenting with this? Or are there some barriers, other than tradition (to be sure, always an important matter with the judiciary), that I'm missing?

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Webcams are usually so wide angle that they might not be good for an entire courtroom. But for simple hearings, probably ok -- one for the judge, one for each attorney.

I worked for a company which computerized court reporting, turning the stenographer notes into computer files. Some courts experimented with microphones and found problems: attorneys who liked to move around faded in and out; some were not very clear speakers; it was hard to tell who belonged to each voice; and so on. Again, this might not matter for simple hearings without an audience to impress, and including video solves a lot of problems.

[John Hawkinson]

I hear that States are the "laboratories of democracy." Given that there are a lot more state [appellate] courts than federal Courts of Appeals, it would stand to reason we might see this innovation there first.

Any information on experimentation that has been tried at that level?

For that matter, one assumes we are going to be seeing increasing use of telephonic appearances at federal district courts, although I don't know if that has actually happened. It would be especially interesting to know if that results in remote access for the public, not just for appearing counsel.

[John Hawkinson]

Update: the Federal Circuit this morning announced it's moving to limited telephonic (not video) oral argument.

Specifically, for its April 2020 sitting: "Some of the cases are being removed from the argument calendar and will be submitted on the briefs. In cases remaining on the argument calendar, if counsel for either party is located outside the National Capital area, the argument will be conducted by telephonic conference at the date and time previously scheduled. In cases scheduled for argument where counsel for both parties are local, as of now, the court plans to proceed with in-person argument as previously scheduled."

http://www.cafc.uscourts.gov/announcements/public-advisory-concerning-federal-circuit%E2%80%99s-april-2020-sitting-march-12-2020

[Noscitur a sociis]

I have handled plenty of hearings via videolink, and it's always markedly worse than being present in person. It may well be good enough to be worth switching to under the current circumstances. But it's decidedly not costless.

[MatthewSlyfield]

Sitting in your living room twiddling your thumbs is not costless.

[Eddy]

Hypothetically, could you have the camera focus just on the upper body, where you're wearing a suit and tie, while outside camera range you're in your underwear?

[MatthewSlyfield]

Why bother with the underwear?

[Sam Gompers]

How can they figure all this out for a cold virus, but the Global Warmmongers couldn't figure out how to do this to save the planet?

Maybe because one fear is real?

[Rossami]

The big downside you are missing is the research on comparative credibility resulting from the use of such technologies. One of my professors at Carnegie Mellon was doing some really interesting work in this area as early as the '90s. She was staging mock interviews and comparing the acceptance results between in-person and video-enabled interviews.

The short version of her work is that we humans are really well optimized to evaluating credibility in person. With video, however, the technology creates inevitable lags and subtle inconsistencies between expression and audio that human brains interpret as signs of equivocation. Her research conclusively showed that training and awareness could mitigate some of the effect of this bias but could not eliminate it. Interestingly, her research showed that the better the technology, the worse the impact because we cannot consciously compensate for biases we don't notice.

There is no reason to believe that this effect wouldn't influence appellate judicial proceedings today.

[Eugene Volokh]

Very interesting, thanks -- just the sort of study I'd like to read. Do you have any more specific pointers to it? Thanks!

[F.D. Wolf]

Perhaps its time to reconsider the value of oral arguments (on appeals cases) altogether, as opposed to courts' simply deciding cases on briefs. It would certainly be more efficient. If a judges were unclear on certain points, these could be addressed through written questions. There is something to be said for deciding cases based on cold, dry briefs. Just because one might be the more-gifted orator does not, of course, mean that he has the superior argument.