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Arguing from Afar: The New Reality of Zoom

There is a new reality for appellate practitioners that is here to stay (for a while): oral arguments before the Law Court via Zoom. There are of course downsides to this new reality; I’m a firm believer that in-person communication is superior to video communication for many of the same reasons that video communication is superior to telephonic communication. Quite simply, the more “remote” the communication is, the greater the danger of miscommunication and the more you lose in nonverbal communication. But the Law Court has made this new reality work quite well, as I experienced in a recent remote oral argument.

Here are a few thoughts based on that oral argument:

    • Know what to expect. The Law Court clerk’s office does a great job in making sure that participants are ready to appear remotely. As part of that process, litigants should make sure to do their due diligence. Become familiar with Zoom (something we have all had to do). This includes the basics; nothing beats familiarity to make sure that no unexpected surprises arise. But it also includes being familiar with other, less well known features. For instance, Zoom has an “HD” setting that can sharpen the picture, and it’s a good idea to use it.  If you can do a moot via Zoom in advance, so much the better. It will help you have a sense of how the give-and-take of oral argument works: how long to pause, how to avoid cross-talk, what interruptions are like, etc.

    • Prepare in advance to make sure conditions are conducive to good communication. Attention to detail is important. How is your lighting? It is important to make sure you are well lit (from the front, not from the back) to make sure your appearance isn’t distracting. You will be given a standard virtual background that all litigants must use.  This is a useful tool (other courts should use it too), but you should make sure that it works properly in advance of argument. How is your microphone? Make sure that you have a quality microphone, so you can be heard clearly. How are your speakers? The last thing you want is to not be able to hear the justices well.

    • Make sure your equipment is ready the day of the argument. The clerk’s office provides a handy checklist that is a good guide. Make sure your computer is plugged in, so you don’t have battery issues; restart your computer before argument to make sure that there are no background programs that will cause glitches; turn off notifications, so that your computer isn’t making distracting noises; and a wired ethernet connection is better than wireless.

    • Be aware of how the mechanics of the oral argument will work.  Again, the clerk’s office does a great job of orienting litigants. You can sit or stand; just make sure you are properly framed in the camera.  You will be expected to log in 15 minutes before the argument, so that everyone can be introduced promptly. Only attorneys who are arguing will be permitted to appear via Zoom, though others can listen via live stream online. When you are not actually arguing, your video will be turned off by the clerk. (Be ready to unmute and restart your video promptly when the clerk’s office allows you to appear via video). The clerk’s office will still provide you with visual cues on your speaking time. One zoom screen run by the clerk’s office will turn yellow when you have one minute left, and will turn red when your time is up.

Because of the challenges of remote argument, you should also consider how you argue. Because assessing judges’ reactions is more difficult remotely, you should consider slowing down somewhat to allow for reactions and to permit questions. Pausing where appropriate also minimizes the chances of talking over or interrupting a judge. And listening becomes even more important, to make sure that you don’t miss the boat during the give and the take of argument.

Zoom arguments aren’t ideal, but you can make the best of them.

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 219

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About this Author

Joshua Dunlap Civil Litigation Attorney
Partner

Joshua Dunlap, a member of Pierce Atwood’s Litigation Group and Appellate & Amici team, focuses his practice on civil litigation at both the trial and appellate levels. He appears in federal as well as state court, representing clients in various commercial litigation matters. 

Joshua regularly defends clients in complex litigation, including class actions and multidistrict litigation. Much of his practice has involved representing financial institutions, manufacturers, retailers, and other institutional clients in state and national consumer class actions involving various...

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