President Donald Trump's personal attorney Jay Sekulow, left, arrives for impeachment proceedings. Credit: Diego M. Radzinschi / ALM

Shortly after the U.S. Supreme Court announced historic arguments by phone next month, Hogan Lovells appellate litigator Sean Marotta tweeted: "Do you get a podium for your house, wear a suit, and do it like at the court? Do you have more notes? Do you set up a Slack war room with your team for real-time support? Too distracting?"

Another lawyer tweeted: "How can you see the clock and the red light? This makes me itch just thinking about it!"

The justices' decision to hold arguments by teleconference in select cases on six days in the first two weeks of May poses challenges, advantages and disadvantages for the advocates in those cases as well as for the justices themselves. As they await more guidance from the court on how the arguments will unfold, some of the advocates arguing those select cases are thinking through how their preparation may change and the logistics of doing a phone argument.

"I'm going to do my moots over the phone," said Jay Alan Sekulow, counsel to President Donald Trump in the case Trump v. Vance, in which a state grand jury is seeking Trump's financial records. "I want to get a feel for it. My theory is let's get used to how we're going to be doing this."

Sekulow, who has argued 12 Supreme Court cases, has done a teleconference argument in federal district court involving a preliminary injunction. "It's very different when there is one judge and a couple of lawyers than it will be with nine judges," he said.

When March arguments in the Trump case were postponed, Sekulow said, he was finishing the reply brief in the case and he had drafted an outline of what he planned to say during arguments. "I put everything back in my litigator case," he recalled. Now he will take everything out, but "I don't think my preparation will be any different."

Roman Martinez of Latham & Watkins. Credit: Diego M. Radzinschi/ ALM

Latham & Watkins partner Roman Martinez, like Sekulow, does not think the teleconference will change his usual argument preparation. Martinez, who will face the solicitor general's office in Barr v. American Association of Political Consultants, said his preparation includes doing moot courts, reading all of the cases, getting deep into briefs, deciding what are the five or six major questions the case is likely to turn on and trying to focus precise answers that speak to the justices' likely concerns on those issues.

Martinez, who has argued eight high court cases, has done two teleconference arguments in district courts in the last five weeks. His experience has been, he said, "If structured the right way, you can have a very constructive back and forth, and hopefully with nine justices as well."

A teleconference argument in the Supreme Court does present some distinct disadvantages for the advocates who will argue.

Jenner & Block partner Ian Gershengorn, a former acting Obama-era U.S. solicitor general who has argued a dozen high court cases, echoed Martinez and others on one of those disadvantages.

"You're so used to getting visual cues and questions from the justices, whether its body language that they are happy or unhappy with your answer or whether it's a sense someone has a question and begins to leap forward," said Gershengorn, who is representing a Native American criminal defendant in McGirt v. Oklahoma. "So much of the argument is nonverbal cues that I do think it will, in an important way, change interactions between you and the court in much the same way a conversation over the phone is different from one using ZOOM video."

The justices also face a similar disadvantage, said Eric Rassbach of the Becket Fund for Religious Liberty.

In the typical Supreme Court argument, the justices are not just listening to the advocates but they are watching and listening to each other. They will not "see" those reactions on the phone, he said. They also are often jumping into the argument at the same time with questions and then deferring to each other.

"But how do you do that on the phone?" asked Rassbach who is making his first high court argument in the consolidated cases Our Lady of Guadalupe School v. Morrissey-Beru and St. James School v. Biel.

The court is expected soon to provide further guidance on argument dates. Until then, the advocates are also thinking through their own logistical issues.

In normal Supreme Court arguments, the advocates have two minutes of uninterrupted time to present their case and the court frowns on reading from prepared notes.

Ian Gershengorn. Photo by Diego M. Radzinschi/ ALM

"Without giving away any secrets, we'll probably be able to read our opening," Gershengorn said. "I haven't thought through whether I can have anyone in the room or available to send emails or comments. I will have rebuttal so I definitely would want to get feedback from colleagues about approaches or responses I should have given. We'll have to see what the social distancing rules are when May comes."

Gershengorn said he intends to use a landline, not a cellphone, but he hasn't decided whether to do the argument at his home or go to his Washington, D.C., office.

"I did my first teleconference from the office, before the lockdown," said Latham's Martinez. "I did the last one from home, which worked well. For the Supreme Court, I'll probably go into the office. I trust the technology there more than at home with my iPhone and earbuds. I do not anticipate I will be in morning attire. I will not be in a suit but I plan to wear my lucky sweater."

Sekulow has the advantage of having nearby audio facilities with soundproof rooms associated with a radio program that he does. "I do not have a landline in my house. If it's going to be a landline, my office is not far away. I'm going to wear a suit and stand up. You're still talking to the Supreme Court of the United States."

Each advocate applauded the court's decision to adopt teleconference arguments.

"I think it's good for the country that they continue to show the process is moving forward and good to show the court is being flexible like everybody else is," Martinez said. "We are where we are, and we've got important issues that need to be resolved."

Former Obama-era acting U.S. solicitor general and Hogan Lovells partner Neal Katyal is not arguing in the May cases, but he has had experiences with video and telephonic arguments. He and the other advocates also applauded the court's decision to provide live audio of the arguments for the public.

Katyal said live audio is an important first step for the court, but he disagrees with those who say this is now the camel's nose under the tent and the court cannot return to refusing same-day, live audio of arguments.

"As much as I want the court to do this in every case, this is an incredibly unique, life-threatening situation and the court should feel it can try this out and not have it thrown in its face and have to do it next year," he said. "The court made a very difficult choice here faced with an extraordinary threat, and time will tell whether that works."

 

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