What it’s Like to Argue an Appeal from Home

By John Grimm

Practicing law these days reminds me of the apocryphal ancient curse, “may you live in interesting times.” The times are definitely interesting, and one interesting thing I did earlier this month is argue an appeal from my living room.[1] For the foreseeable future, it seems that the Maryland appellate courts will be operating remotely with oral arguments being handled by video conference, so I wanted to share my thoughts on the experience.

My case was scheduled for the Court of Special Appeals’ May argument session back in November, and I watched my argument date approach with growing certainty that things were not going to clear up in time for me to argue it in person, so it was not a surprise when the court extended its remote argument policies for another month. Overall, while I would have certainly preferred to go to Annapolis and argue the case in person, I was impressed how smooth the process was and how closely it approximated a normal court appearance.

Remote Briefing

I filed my opening brief in January, before any of the lockdown measures were put in place. Since my case originated in Baltimore City, electronic filing was not available. By the time the opposing party submitted its brief, however, the court had entered lockdown mode, so both the appellee’s brief and my reply benefitted from the court’s temporary policy allowing electronic filing for all cases. I know that when the current crisis ends, e-filing will no longer be available for non-MDEC jurisdictions, but I found the electronic filing option to be extremely convenient, and I hope that it will not be too long before all briefs can be filed that way.

Preparing for Court

In addition to the normal prep work that goes into an oral argument, I wanted to make sure I planned for all the novel issues I would experience with a video argument. By far the most pressing and complex planning went into ensuring that my one-year-old did not contribute her own oral advocacy to the case. Fortunately, it was a nice day, so she and her grandmother got to spend a long time playing in the yard with my wife standing guard firmly at the door.

A tremendous resource when preparing for argument was the web archive the court keeps of all its video arguments. Even though there were only a few weeks of video arguments before mine, I found it invaluable to see what other arguments before mine looked like. I had a number of practical questions—would the judges wear robes? (Of course!), would they all be on the bench together? (No, they were all in their individual chambers), would the lawyers dress for court? (Usually…), do people stand for their arguments? (No)—and watching videos of earlier arguments was extremely helpful. I hope that when things return to normal, the Court of Special Appeals will consider continuing to make video recordings of arguments available, like the Court of Appeals does, or even just audio like the federal appellate courts do. Not only is it a wonderful tool for attorneys preparing for argument, it is a great way to make the courts accessible to the public at large.

A few days before my argument, I did a video moot from the same set-up I would use for the argument itself. In addition to helping prepare the substantive argument, this helped me get familiar with the mechanics of the argument, and catch any issues like distracting lighting while there was time to make adjustments. I made sure to fish out the email with my log-in credentials the day before the argument as well, since I knew it was something I risked overlooking the day of.

And if, like me, you have not had to change out of your pajamas for the past two months, you may have to dig around a little to find your court clothes. I had visions of running around frantically the morning of my argument looking for a tie, so I made sure to lay out everything I would wear the night before. And yes, I wore the full suit—no jeans out of view of the camera—but I confess that I did not wear shoes.

Argument Logistics

The Clerk’s office did an impressive job organizing the remote arguments, especially considering that they were inventing the procedures essentially on the fly. At the beginning of the month, the Clerk hosted several orientation sessions for all attorneys arguing cases in May. At the one I attended, not only did the staff explain how to use the remote interface, but they also offered practical tips on camera placement, lighting, and how to avoid talking over the judges when you’re not in the same room.

A few days before my argument, I got an email with log-in credentials. On the morning of the argument, I checked in with the clerk by signing in, telling them which case I was arguing, and reserving my rebuttal time as usual. They took my contact information in case we got disconnected, and it was clear that the court would be understanding if I did encounter a technical problem. I imagine checking in a bunch of attorneys who have never appeared in court by video conference must be highly stressful, but the Clerk’s office staff did not betray any anxiety, and were accommodating and full of aplomb.

Once I had checked in, I was placed in a virtual “waiting room” which just meant my iPad showed a blank screen. This was the worst part of the experience—staring at a white screen waiting for my case to be called. At least in physical court, you can watch the arguments ahead of yours which helps keep your mind from wandering too far, and you get a sense for the tone of the questioning and the mood of the bench. I like trying to figure out what a case is about based on the questions and answers. Anyway, I didn’t get to do that this time. Instead, I just stared at my notes, alone with my thoughts, and waited and waited while the case before mine was argued. Fortunately, the Clerk’s office called me between arguments to let me know the court was taking a brief recess, so I wasn’t thrown into my argument too abruptly. Shortly after that, my case was called and we were off to the races.

The Argument

The argument itself felt surprisingly normal. It helped that I had done a video moot a few days earlier and that I’ve been doing video meetings for months now. There were not any technical issues, and I did not feel that the remote connection imposed any barrier to having a lively back and forth with the judges. Most important, I did not feel like the physical distance between me and the judges affected my argument or harmed my ability to communicate with the court. Also, I discovered that a tough question from the bench does not feel any less tough when you are in the comfort of your home.

One aspect of the remote argument that was new and different, however, was that I had greater access to my notes than I would ordinarily. I did the argument itself on my iPad, which I placed on my desk between my two monitors. This allowed me to have all my notes and the briefs up on my screens during the argument, teleprompter style. I didn’t end up using those materials any more than I ever use the notes I bring to the podium—which is to say, at all—but having the materials handy without it being obvious was a nice safety blanket.[2] The ability to discreetly read your notes has the potential to backfire, though. Judges don’t want you to recite your brief or read from a script, and I think it would be apparent if that was happening. I’ve spoken to several people who felt that video arguments had a more intimate or familiar feel. I don’t know that my argument felt less formal than normal court, but I did have the sense that everyone involved in the appeal understood that this was an unusual experience that we were all sharing.

Final Thoughts

I am looking forward to court returning to the courthouse. There is no substitute for standing at the podium a few feet away from your panel. But the Maryland appellate courts have found a good way to continue their operations without compromising the effectiveness of oral argument. And hopefully some of the court’s innovations like electronic filing and video archives of arguments can continue once things are otherwise back to normal.

I hope you don’t have to argue your case remotely. But if you do, you will have an interesting experience to talk about—for better or worse.

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[1] Well, it wasn’t actually my living room, it was my home office, which is starting to feel like the room where I live.

[2] One of my greatest challenges preparing for oral argument is memorizing case names. I’m terrible with names, so to me, cases are all “the one where the guy said the thing and the court said it wasn’t hearsay….” It was nice being able to glance at a cheat sheet of case names without it being too obvious.