Video conferencing via Zoom and other applications has been used in courts across the country.

Editor's note: This commentary is updated. An earlier version was submitted in error. 

One casualty of the COVID-19 crisis is live oral arguments on appeals. As far as we know, there have been none anywhere in the country since mid-March. But while trials—especially jury trials—have ground to a virtual halt, oral arguments have not. They have gone remote. They have done this in two principal ways: by video presentations and by old-fashioned telephone conference calls.

Connecticut courts have opted for video presentations. These are closer to live oral arguments than conference calls, but they require mass rescheduling to give the judges, counsel and technical staff a chance to prepare and run dress rehearsals to make sure they work properly. Video presentations also require more time for each appeal and more time between appeals. This has had a significant effect on the Appellate Court this spring, but not on the Supreme Court.

To be specific, the Supreme Court canceled its April term, but then held an April/May term with 14 cases assigned. The court will also hold a special term in June with 11 cases assigned. In 2019, the Supreme Court heard seven cases in April and seven more in May, so opting for video presentations appears to have only resulted in about a one-month delay. But the Supreme Court more than compensated for this delay by scheduling many more cases for argument in May and June than in the past.

On the other hand, the Appellate Court canceled the end of its March term, as well as its entire April term when it probably would have heard 50–60 cases, but then held a May term with 24 cases assigned and will hold a special term in June with 15 cases assigned. In 2019, the court heard 53 cases in April and 54 cases in May, so opting for video presentations appears to have resulted in considerably more than a one-month delay for many cases. However, the Appellate Court has been quite prompt in the past about scheduling oral arguments once all briefs are filed, so the backlog will probably be cleared up by the fall terms.

Judges from four federal Circuits—the Third, Sixth, Eleventh, and D.C. circuits—held a video conference in May to discuss their responses to the cancellation of live oral arguments. All four circuits immediately opted in mid-March for old-fashioned conference calls. Telephone conferences are further away from live arguments, but they require no rescheduling at all. The clerks told lawyers not to come to court but just to pick up their telephones at previously assigned times. In short, those courts did not skip a beat.

So which way is better?

There is quite a lot to be said about the Connecticut approach. You don't need any proof to know that, if you want to convince someone that you are right about an important issue, and you have the choice of picking up the telephone or going to see that person, you go. Seeing the person gives you all sorts of visual clues for how to make your presentation that a telephone call does not.

There were problems. Lawyers should not be asked by the court, as they were, if they were willing to waive oral argument. Courts are supposed to be open to the public but they were not; oral argument should have been delayed until that solvable problem was solved. If the COVID-19 crisis continues to prohibit live, in-person arguments, platforms used by other state appellate courts should be examined to see if they performed better than the platform used by the Connecticut Appellate Courts.

The federal judges said everything went smoothly on the telephone—the lawyers got in what they wanted to say and the judges got in their questions—but some of the judges also said they couldn't wait to get back to live oral arguments.

In our view, Connecticut has made a good start. The courts slowed down, figured out how to set up the video presentations properly and rescheduled the cases so lawyers could present their arguments as close to live and in-person as the current crisis permitted.