In the coronavirus era, the U.S. Supreme Court is taking after Illinois’ 2nd District Appellate Court.
The nation’s top justices are using the same process for remote arguments that the Elgin-based intermediary court implemented after much of the state in March was ordered closed by the governor.
Arguments are audio-only, with one side getting uninterrupted time to make their case, followed by a designated question period from the panel. The process repeats for the other side.
There are obvious drawbacks. Some nuance is lost without visual cues, and the interactions aren’t as rich. But the relatively low-tech solution allowed the panel to keep its argument calendar in place and keep churning through cases.
“We thought it would be a nightmare to cancel oral arguments or postpone oral arguments in these important cases,” Justice Joseph E. Birkett said during a webinar on Thursday.
He noted he had experience with remote hearings as a state’s attorney, a necessity for a Frye hearing when one witness was in California and one was in New York.
“What we said is we are not going to allow justice to be a casualty of this pandemic,” Birkett added.
The virtual event dove in to the particulars of digital arguments in the 2nd District and elsewhere. Justices Ann B. Jorgensen and Mary Seminara Schostok, Mayer Brown LLP partner Michael A. Scodro, Swanson Martin & Bell LLP partner Catherine Basque Weiler and Hall Prangle & Schoonveld LLC’s Hugh C. Griffin also spoke. The event was moderated by Illinois Appellate Lawyers Association president and Hinshaw & Culbertson LLP partner Gretchen Harris Sperry.
Jorgensen said one of the initial misgivings she and her colleagues had about going remote was that no one was quite sure how long the shutdown would last.
“Was COVID going to be a 14-day thing? Because that was the initial sequestration period,” she recalled.
But once it became clear the courts were going to have to adjust to a new world for a longer than that, more practical issues came in to focus.
“The question was talking over each other, and how are we going to alleviate that? Because you can’t see each other. So, we came up with a format to address that, by giving each side the opportunity to argue without interruption, then entertain questions at the end,” Jorgensen said.
Schostok said the 2nd District is normally a “hot” bench, “and the first thing we do is come out of the gate” with questions, so that aspect of oral arguments is diminshed for the time being. But doing an audio-only setup with the WebEx conferencing service has also diminished technical difficulties that some people may have while trying to set up video.
“When we decided this, we were looking at — where are we going to have less glitches?” Shostok said. “And with this procedure, we’ve really had no glitches.”
She also joked that audio-only arguments was the right decision “in light of the fact that hairdressers were not deemed essential workers.”
The justices gave some general tips, too, for litigants who may argue before them remotely during the coronavirus era. Be concise, speak slowly and clearly, but make your case. Don’t just read straight from the brief.
They also signaled that, as long as litigants aren’t disadvantaged by a lack of good equipment or connectivity, remote arguments in some form may be here to stay even after the pandemic wanes.
“I think that’s coming,” Jorgensen said. “Who would’ve thought a year ago that we would have myriad seminars on how to use Zoom and how to place your camera. As this technology is falling on us like an avalanche, I think we’re going to get there very quickly.”