During the ongoing COVID-19 pandemic, the U.S. Court of Appeals for the Second Circuit has been conducting oral argument via teleconference (without video).

We recently argued an appeal before the Second Circuit using this procedure. We did not know what to expect, and although there are differences between a teleconference and appearing live, we found that the Second Circuit handled this transition very smoothly. In this article, we provide some general observations and practical considerations concerning "virtual" oral argument before the Second Circuit.

Preparing for Virtual Oral Argument

From a substantive standpoint, preparations (reviewing the record, briefing and drafting an outline) should largely be the same as if you were preparing for in-person oral argument.

Each side is typically given a maximum of 10 minutes to argue. If you are the appellant, we recommend that you reserve two minutes for rebuttal. Be prepared for the "three-minute rule." This essentially means that each party will get to argue for three minutes without interruption, after which time the court will begin questioning counsel. If the court employs this rule, use the three minutes wisely by focusing on the salient issues. Since the court will use much of your time for questions, it is important to know the record and your arguments inside out, particularly since you will likely not have co-counsel in the same room to help with any citations to the record.

From a procedural standpoint, there will be some notable differences. In advance of oral argument, you will receive a notice listing the start time for all arguments on the calendar, the phone number to call and instructions on when to check-in with the clerk. Only two individuals per party are permitted to dial-in, namely, the person arguing and one co-counsel.

The Second Circuit will live stream (audio only) the argument. This offers some advantages. For example, a client who would not otherwise be able to physically attend oral argument could conveniently listen remotely.

The court recommends using a landline to avoid any hiccups (e.g., call-drops) that could occur with a mobile phone. We used landlines, which worked very well. If the call does drop, you can call the same number to rejoin the argument. (The clerk even provided her direct phone number as a fallback).

Because of social distancing restrictions, you may not be able to be in the same room as your co-counsel during oral argument. (This was the case for us.) Thus, Brian Comack (who argued the case) and Douglas Miro (co-counsel and partner in charge of the case) used the chat feature on Microsoft Teams to set-up a virtual "counsel table" so that they could communicate during oral argument. Other members of the litigation team who are listening to the live stream of argument can also be included as part of the virtual counsel table. We recommend a "dry run" with the chat feature on Microsoft Teams in advance of the argument.

You should also prepare your workspace in advance of the argument. Many people of course are now working from their home offices during this pandemic, some with school age children attending virtual school. To ensure a quiet workspace, it is important to keep your home office door closed and ask other household members to keep quiet and remain sufficiently distanced from your home office during this time. It is also important to have a big enough space to allow for the easy access of materials you may need to reference during the argument.

In the days leading up to oral argument, the judicial panel and the order that the court will take up arguments will be listed on the Second Circuit's website, as is always the case.

Practical Considerations for Conducting the Virtual Oral Argument

The check-in process was very organized and went very smoothly. On the day of oral argument, check-in with the clerk 30 minutes prior to the start time using the provided phone number.

At check-in, the appellant should reserve time for rebuttal. Counsel for all other arguments will also be checking at that time. Once all counsel was checked-in, the clerk summarized the ground rules for telephonic argument, including explaining that she would be keeping track of time and providing reminders on time remaining.

Judge Sullivan presided over our argument. During argument, each judge identified themselves before speaking. Unfortunately, it is not possible to gauge the judges' physical reactions (e.g., facial expressions, mannerisms, etc.) during the argument. It is similar to listening to a live stream audio broadcast of a sporting event. Although we could not see what was happening in the virtual courtroom, in our case, we found the court's insightful questioning and commentary provided a clear picture of what arguments to focus on. But this may not always be the case. We strongly recommend practicing oral argument in advance with your co-counsel.

It is also important to keep your phone on mute when opposing counsel is speaking to avoid any background noise (e.g., barking dogs, street noise, etc.). You should also use a speakerphone so that you can argue hands-free.

During oral argument, the Microsoft Teams chat feature proved to be an invaluable technological tool. While this feature was available, some lawyers may find it too distracting when it is a party's turn to argue. We suspect it will prove most valuable to an appellant during opposing counsel's argument, where notes can be shared for rebuttal arguments. This was certainly the case for us.

Finally, you should be prepared for oral argument to extend past the time allotted by the court. In our argument, the panel questioned opposing counsel for much longer than the 10-minute allotment.

Takeaways

Overall, our experience doing virtual oral argument before the Second Circuit was very positive. We found the entire process to be seamless, well organized and very close to being in an actual courtroom.

Douglas Miro and Brian Comack are intellectual property partners at Amster, Rothstein & Ebenstein.