Returning To In-Person Oral Arguments

During the COVID-19 pandemic, many courts began holding virtual oral arguments in order to keep people socially distanced. Although this led to a few foul-ups in the beginning, most attorneys and litigants easily adapted to arguing matters virtually. Now that the COVID-19 pandemic is in the rear-view mirror, many courts have restarted holding in-person oral arguments. I recently had my first in-person oral argument since March 13, 2020, and those used to virtual arguments will need to adapt to in-person arguments in certain ways.

More Pressure

Arguing matters over Zoom can create a lot less pressure than arguing matters in court. When people use Zoom, they are either at home or at an office -- definitely less hostile settings than a court room for facing down a judge or adversary. Moreover, most of the time lawyers argue matters in court, many other attorneys and litigants are in attendance. Lawyers arguing in court often need to "perform" in front of dozens of other peers and colleagues and this can be a daunting task. I have only argued one matter virtually during which the court made everyone argue in front of everyone else in the Zoom room, and most of the time, remote arguments are far more private than those in a courtroom.

When I returned to in-person arguments, I definitely needed to get used to the intensity of being in a courtroom and seeing my adversary and the judge face to face. Viewing these figures over a computer screen just isn't as daunting as seeing them in real life, and it is a serious adjustment to get back to the pressure that people naturally feel when they enter a courtroom. Lawyers might even want to practice mooting points with live participants before they return to in-person oral arguments to refamiliarize themselves with this experience.

Less Assistance

When people argue matters remotely, it is easy to hide important documents and other aids that individuals might not feel comfortable using if they are arguing a matter in person. For instance, when I prepare for oral arguments, I typically write down an opening that I want to convey to dthe court in case I have an opportunity to present arguments before being peppered with questions from the bench. When I argue matters in person, I usually just need to memorize this "script" because I wouldn't be caught dead reading from a piece of paper at an in-person argument. However, when arguing matters remotely, I can put the "script" just off camera and consult it if needed.

Of course, most of the time, I never even have a chance to read from the script, but it is a useful tool to have handy during oral argument. In addition, it may be easier to look for cases, briefs, and other materials that might be helpful during oral argument if the proceedings are held remotely than if they are held in person. This is because it might be unseemly to search for materials in court. Lawyers returning to in-person arguments definitely need to get used to not having as many prep materials readily available to them during the proceedings.

More Wasted Time

In-person oral arguments often require lawyers to waste much more time than if they argue matters remotely. First, lawyers need to travel to and from courtrooms. If attorneys live outside of city centers or other places where courthouses are located, attorneys may commute an hour or more each way to attend oral arguments. Once attorneys arrive at court, they may need to wait even longer before they are able to argue a matter. Courts often schedule a variety of matters for consideration at a given time, and the parties need to wait until their case is called before they can argue a matter. In some situations, this can be even more time than the lawyers spend commuting to and from a courthouse.

When parties argue matters remotely, not only is there no commute, there is usually no wait time to argue matters either because courts usually schedule matters to be argued remotely at a set time rather than instructing counsel on a number of matters to arrive at court at the same time. Lawyers should be prepared to minimize their downtime when they begin arguing matters in person again so that they can best serve their clients.

All told, more matters are going to be argued in person as fears over the COVID-19 pandemic subside. Lawyers can keep a few things in mind to ensure that they make an efficient transition from remote arguments to in-person appearances.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.