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; I’m not sure whether the Ninth Circuit had experimented with them before. 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 in the future. (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.)
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.
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.”
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