Howard Bashman.

Upon Further Review

In last month's installment of this column, titled "Coronavirus Shouldn't Grind All Appellate Proceedings to a Halt," I briefly mentioned that the Philadelphia-based U.S. Court of Appeals for the Third Circuit had begun to conduct certain oral arguments telephonically.

More recently, the state appellate courts of Pennsylvania have announced how they will be altering their oral argument procedures until it is once again safe for participants to conduct appellate oral arguments in person. And the U.S. Supreme Court has begun to hold its oral arguments telephonically, marking the first time in history that the high court's oral arguments have been broadcasted live to listeners located outside the building in which that court's oral arguments traditionally take place.

Focusing first on how the new procedures for oral argument before the U.S. Supreme Court have changed things, those arguments no longer present the largely unstructured free-for-all in which the justices compete with one another to ask questions and the advocates struggle to answer before being abruptly interrupted over and over again. Instead, the high court's telephonic arguments have resulted in a procedure whereby, after brief introductory remarks from the advocate, each Justice is recognized individually by the chief justice to conduct a few minutes worth of questioning before moving on to the next questioner.

This new format certainly has its own pluses and minuses. Justice Clarence Thomas has become a full-fledged participant in the court's telephonic oral arguments, to the delight of many. Statistics compiled by Adam Feldman at his "Empirical SCOTUS" blog show, surprisingly, that the advocates are speaking more under the new format than they had been speaking during in-person oral arguments. And no doubt the biggest plus is the general public's historic ability to listen live to the argument of cases pending before the nation's highest court.

On the minus side, the new oral argument structure prevents advocates and the justices from developing momentum in discussing major points at oral argument, as the telephonic questioning tends to be more disjointed as each justice can focus on whatever matters most to him or her. And it is difficult for the justices to fully explore the questions of most concern to them and for the advocates to have the benefit of sustained follow-up questions from any single justice.

Nevertheless, the organized manner in which the U.S. Supreme Court is conducting its telephonic oral arguments does address one major concern with that method of appellate oral argument: the lack of visual cues preventing the advocate from seeing if a justice is about to ask a question or is satisfied or unsatisfied with the advocate's answers to previous questions. The free-for-all method of appellate oral argument, whereby judges interrupt the advocate at will, works well for in-person argument but threatens unintelligible cross-talk during telephonic argument.

It is thus noteworthy that the state appellate courts of Pennsylvania have decided to use videoconferencing technology as the main method for conducting their appellate oral arguments. My first experience with video oral argument in a Pennsylvania state appellate court is scheduled to occur at 10 a.m. June 3, when I will be presenting argument remotely before a nine-judge en banc Pennsylvania Superior Court panel. This oral argument, before it was postponed due to the coronavirus pandemic, had originally been scheduled to occur in Philadelphia March 18,. Approximately 45 days after the original argument date, the oral argument now will occur via online video.

Later this week, the Superior Court is planning to conduct several oral arguments telephonically, but soon thereafter the Superior Court is planning to conduct the bulk of its oral arguments using videoconferencing technology. And the Pennsylvania Supreme Court and the Pennsylvania Commonwealth Court will also be conducting their oral arguments using video.

The prompt embrace of technology to allow appellate oral arguments to continue under the current less than optimal circumstances deserves our praise. None of these remote oral argument alternatives is superior to, or likely to permanently replace, in-person appellate oral argument, but they are certainly far preferable to the other alternative, no oral arguments whatsoever.

The state appellate courts of Pennsylvania also deserve praise for ending the blanket extensions of appellate briefing deadlines, as I had recommended in my column last month. By my calculation, many of those blanket extensions expired yesterday, and the rest are due to expire later this month.

It is impossible to predict when the current disruptions of trial and appellate litigation that the coronavirus pandemic have necessitated will come to an end. Undoubtedly the most difficult conundrum to solve will be how to restart jury trials, as they presumably can only be conducted in person. By contrast, appellate cases involve a record that was previously created in the trial court, and these cases can move forward to briefing, argument, and resolution notwithstanding work-from-home and social distancing policies.

To keep appeals moving forward in Pennsylvania state courts requires one final ingredient: the continued issuance of trial court opinions in support of the decisions that have been appealed. State trial courts in Pennsylvania traditionally write such opinions after an appeal has been taken, and the appellate courts will not issue a briefing schedule until the trial judge completes and files an opinion in support of the rulings that have been appealed.

I had hoped that the current lull in trial court proceedings might result in a bit more free time during which trial judges could prepare, finalize, and file opinions in cases in which appeals have been taken. Although my own experiences in this regard do not constitute anything close to resembling a scientific survey, in the cases I am working on in which trial court opinions had yet to issue before courts ceased conducting in-person proceedings, no trial court opinions have emerged thus far. Here's hoping that changes someday soon.

To summarize, Pennsylvania's state appellate courts deserve praise for finding a way to keep appeals moving forward during this difficult time, both insofar as briefing and oral argument are concerned. Here's also hoping that trial judges with opinions to write so that appeals can move forward will be able to devote adequate attention to those opinions during whatever lull in ordinary trial court proceedings they currently may be experiencing.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached by telephone at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.law.com/ and via Twitter @howappealing.