The Third Circuit remains open for business during the coronavirus pandemic. That includes continuing to hold the oral arguments it had already scheduled, and continuing to schedule new ones too. There’s a full panel sitting this week, another next week, and one argument already scheduled for the following week.
The court has given the power to decide how to hold each argument—either in person or by audio-only phone conference—to each panel. I don’t know yet if the panel sitting this week is holding any in-person arguments. I do know that the lone argument last week was by phone, and I know that at least one of the arguments held this morning was by phone.
Since at least a good chunk of CA3 arguments are being done by phone, and since doing an appellate oral argument by phone is uncharted territory for almost all of us, I figured it might be helpful to offer a few suggestions for counsel preparing for one. Take my advice with a grain of salt; I helped counsel prepare for one of these CA3 phone arguments, but I haven’t done one myself.
Here are four tips plus a suggestion:
- Know the judges’ voices. If you’re not already able to identify the three judges on your panel by voice alone, fix that. If you’re having to guess about which judge just asked you or your opponent a question, you’re at a real disadvantage. Listen to past argument audio (if you’re really stuck, try to find a case where the judge is the only man/woman on the panel) until you’re confident you’ve got it.
- Be certain you know how to pronounce their names correctly. You’re more likely to need to say the judges’ names (to refer to an earlier question, for example) because you can’t just look at the judge when referring to “your Honor’s question.” Make sure you know them. Here’s a guide.
- Focus even harder on shutting up when a judge talks. This is always critical, but it’s even harder when you can’t read judges’ body language to see if they’re trying to jump in. Do your very best.
- Take advantage of your invisibility. Arguing by phone his harder in dozens of ways, but the bright side is that the judges can’t see you. Eye contact doesn’t matter, and no one cares if you’re standing serenely at a podium. That means you can use written materials more than you ever could during a normal argument. Take full advantage. But still make sure you’re listening intently when judges are asking questions, and still avoid reading especially after your intro.
In addition to those four tips, I also have a suggestion. This one feels like more a matter of opinion, so I don’t offer it as the gospel truth and I expect reasonable folks will see it differently:
Stay focused. The best way to show your respect for the court is to respect their time by being prepared and focused, as always. You may be tempted to open with heartfelt remarks about the pandemic, or your gratefulness to the judges, or how you weren’t able to prepare as well, or how you’re sorry in advance if you talk over them by mistake, or the like. But I think you should resist the temptation. Trust the judges to know all that already, and leave any solemnizing remarks to them. Even in this extraordinary moment, ditch the wind-up and the throat-clearing and dive right in.
Preparing for argument can be overwhelming in the best of times. Expect it to be that much harder and more stressful now. Just be patient with yourself, and stay safe everyone.
UPDATE: here’s a smart post on the same topic on the Sixth Circuit Appellate Blog by former SDOH U.S. Attorney Benjamin Glassman. Unlike me, he’s actually done appellate oral arguments by phone.