The assignment: Oral arguments in U.S. v. Jones, No. 19-2176 and 19-2177 (7th Cir. 2021) on Oct. 2, 2020.
Oral argument at the Seventh Circuit! Receiving an oral argument hearing date is one of the exciting events in the course of an appeal.
In past experience, getting the argument date begins planning. Planning on travel to Chicago, meeting opposing counsel, and arguing before three circuit judges in one of the oversized and resplendent courtrooms.
Then I received this notice: the hearing would be by Zoom.
“Oh no,” I thought, I am going to miss out on a real
argument at the court?
Well, with the pandemic on I should have expected it. Still, I really wanted to go. And I wondered, how would this impact the case?
Testing 1 … 2 … 3 …
A week before the day of argument, the court sent an email notice. A Zoom test would occur the day before the hearing. I was sent a link to log in the day before the hearing.
On login day, I logged in and all the counsel who had arguments that day – about 15 in all – were there. So was the court staff, as were staff from the clerk’s office, another in the law clerk’s room, and one on the bench in the courtroom. We were sent to breakout rooms and told to wait.
Nicholas Zales, Marquette 1989, is an appellate attorney with Zales Law Office, Milwaukee.
Wait would be a common theme.
Once in the breakout room, I was joined by my co-defendants’ counsel and the assistant U.S. attorney (AUSA). We shared a few pleasant hellos and then silence. Then, after a few minutes of awkwardly staring at each other, the AUSA turned off his camera. Silence remained. I was hesitant to say anything, as you never know who is listening.
The silence was eventually broken by the court staff, who invited us back into the meeting. The court tested to see if each of us could hear and see them from their three locations and if they could see and hear us. All was well, and we were instructed to log in at 8:30 a.m. the next morning.
Next up were a number of questions. Do I use a fake background and if so, of what? No and none. I looked at some courtroom backgrounds, including ones from the Seventh Circuit, and decided my office was just fine. Fake backgrounds don’t always work well unless you sit motionlessly.
Oral argument is not the time to try new tech.
A friend suggested a podium so I could stand. I found a small file cabinet and set it up. The problem was, as she suggested it might be, I had a hard time standing still. So the podium idea was out. I would use the same Zoom configuration I always do, sitting in my office chair.
Anyone who has argued matters in person learns the presiding judges and the argument line-up when they arrive at the court on argument morning. Zoom does not change this practice – here, I logged in the next morning, learned the panel, and also learned that our hearing was, unfortunately, scheduled last. By my calculations, we would go on around 11:30 a.m. That left three hours to find something to do.
So the case was placed in a breakout Zoom room and again, there was nothing but brief hellos. We turned off our cameras and microphones and began to wait.
We could not see the arguments in the cases before us, but could watch them on YouTube. I looked up the judges on our panel. All three were from Indiana. I received a call from my co-defendant's attorney and we briefly discussed our order of presentation. I was ready to argue when I logged in, but now had to kill three hours. I needed a distraction, but not too much of one. So I read some email, viewed a few webpages, and checked on YouTube to see where the court was in the hearing schedule
Finally, after a wait of a few hours, it was time for the argument. It appeared somewhat by magic. I could monitor progress on YouTube (instead of in-person, viewing it live). Until the argument was ready, however, it was anticipation.
So when the argument went live, I saw the group. One judge was seated on the bench, another in his chambers and the third at home in his study.
Then, after the court instructed us we were a “go,” I took a deep breath, stared into my camera, and began.
Aside from a moment of strangeness in looking into my laptop’s camera instead of a bench full of judges, I hit my stride immediately and the argument was on.
At this point, the argument was similar to one that is live. Here, questions were asked – one judge asked all the questions while the other two just watched – and the U.S. attorney made his arguments and my co-defendant’s counsel argued our rebuttal. Keeping within our allotted time was not a problem, as it was prominently displayed on the screen.
And then it was over.
The Zoom Experience
My opinion then and now is that the argument was a total success. It worked. But for a wait and but for some awkward moments, the argument phase was completed not that much differently from in-person arguments.
Plus, if given the choice in the future between a Zoom hearing or live in the courtroom, I would go with Zoom – but that is also because I have done live arguments. If you have never been to the Seventh Circuit, go and see what is like. The grandeur of the place, meeting opposing counsel, and arguing live before the judges is a unique experience.
For me, because I have done that and for those who have, if you have the option, skip some of the stresses that come from logistics, and stay in your office. You will have everything you need. With the entire file, food and drink, and you can get up and walk around a bit to relax. Best of all you have not spent the entire day traveling to Chicago and back.
A Good Experience
The ultimate question is whether appearing by Zoom is as effective as appearing in person. Obviously, we want to give our clients every advantage possible, no matter how slight it may seem.
Was it effective? Although I did not ultimately prevail in this appeal, I am convinced I was able to present an argument equally effective to as if I was in the courtroom. And it may have worked better than in-person. I had everything I needed at my fingertips, my office was a far more relaxing setting than being at the Seventh Circuit, and I was able to focus on my argument in the minutes before we went on instead of sitting in the courtroom, listening to someone else’s case. Plus, the give and take with the court and opposing counsel was no different via Zoom than in person.
My advice: for now, with the court still requiring hearings by Zoom, embrace it, and use it to your advantage.
Even as the coronavirus outbreak wanes, it is evident that remote proceedings won’t disappear completely. Get tips on how to put your best foot forward when appearing remotely with Lessons Learned While Trying Cases During COVID-19 from State Bar of Wisconsin PINNACLE®, a CLE program that discusses how court operations have changed over the past year in response to the pandemic. This 1.0 CLE webcast session takes place on various dates in May, June, and July 2021. Reserve your spot via WisBar's Marketplace.
This article was originally published on the State Bar of Wisconsin’s Appellate Practice Section Blog, Sua Sponte. Visit the State Bar sections webpage or the Appellate Practice Section webpages to learn more about the benefits of section membership.