The Volokh Conspiracy

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Ninth Circuit Does Oral Argument by Videoconferencing

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


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.)