Speak slowly and enunciate. Stop speaking any time a judge chimes in with a question. And make sure you're in a quiet room away from any children or pets.

In some ways, preparing for and handling oral argument during the COVID-19 pandemic is very similar to the way litigators have always gotten things done. You read all the cases, prepare for all the potential questions, and try to get a good night's rest the night before. But as courts move more and more arguments typically held in person in real-life courtrooms to the telephone or videoconference, litigators across the country have had to adapt.

Matthew Caplan, a partner in the San Francisco office of Cooley, dialed in recently for a discovery hearing before U.S. District Judge Alan Albright in Waco, Texas, a judge who has maintained his practice of holding argument on civil motions, albeit by phone to abide by social distancing guidelines. Caplan said that where he normally relies on the courtroom projector to provide some engaging visuals during his argument, he doesn't have the luxury on the phone.

"You know people have a shorter attention span when you're just a voice on the phone," Caplan says. "The best thing you can do is be as direct as you can and not put yourself in a position where they want to cut you off. You don't want them to lose patience with you because you're overstaying your welcome," Caplan said.

Nitika Gupta Fiorella, an associate in the Wilmington, Delaware, office of Fish & Richardson, handled her first argument at the U.S. Court of Appeals for the Federal Circuit this month during the court's first telephonic session of the pandemic. After participating in moot argument sessions by phone, she forced herself to take plenty of short pauses between thoughts during her presentation. She even wrote "SLOW DOWN" in all capital letters at the top of her notes.

"And I think it paid off. There wasn't much cross-talk during my argument, no more than what happens in person," Fiorella said. "It helped that this was the very first telephonic argument that the Federal Circuit had held, so everyone at the Court seemed to be understanding of potential hiccups. I wasn't afraid of needing to ask the judges to repeat their questions, if there was some cross-talk, so that alleviated some of my concerns," she said.

Fiorella set up her home office to mimic the podium where she would have been making arguments in the court and only kept those notes and papers she would have taken to the dais with her had she been in the court's Washington, D.C., courtroom. She also kept with court protocols and stood while arguing and took a seat while her opponent argued.

Nitika Gupta Fiorella of Fish & Richardson. (Courtesy photo)

"Standing helped me use my voice effectively to emphasize the key points that I wanted the judges to take away from my argument," she said. "Overall, I think treating the argument as if I was in person helped me deliver a more effective presentation and helped to avoid cross-talk, because I tried to mimic the formality and level of decorum that comes from being in the court," she said.

Kirkland & Ellis New York partner Jay Lefkowitz, like Fiorella, was also a pioneer of sorts, handling the first video argument held before the California Supreme Court earlier this month on behalf of Abbott Laboratories. Lefkowitz has handled about a half-dozen telephonic arguments in trial courts over his career but before last week had never argued remotely before an appellate panel of multiple judges or via remote video. 

Lefkowitz said that he closely watched a mock argument that his students in a Columbia Law School seminar on U.S. Supreme Court advocacy held, a course where students take on the role of the nine justices, in the days before his own remote appearance before the seven justices of California's high court. Lefkowitz said that in a typical appellate argument there's a lot of "nonverbal" communication that goes on with the advocate typically 6 to 10 feet away from the judges, but that he noticed a different dynamic unfold on screen.

"On a TV screen or a computer screen you don't have that. You really have to listen," he said. 

"Sometimes you can't quite tell when you're about to be interrupted by a question. The transitions in the argument are a little more challenging than if you're in the room with someone."

Still, Lefkowitz said he prepared for the argument in much the way that he normally would have by reading all the applicable cases, doing written and oral questions-and-answers with a couple of his Kirkland colleagues and participating in two mock arguments—one by phone and one by video. He has another argument scheduled later this year before the U.S. Court of Appeals for the Ninth Circuit, but he said he doesn't know whether to expect to travel for that argument or make another remote appearance.

Regardless, he says he intends to prepare the same way. "I'm going to read everything, consider all the potential questions and think about the strengths of my case and the areas where I'm going to get challenged," he said.   

Teeing Things Up

Alan Fisch of Fisch Sigler in Washington, D.C., recently dialed in for a hearing originally scheduled for the Eastern District of Texas courthouse in Sherman in a dispute he's handling for Largan, the maker of the lens in iPhones, against two Taiwan-based lens manufacturers — Ability Opto-Electronics (AOET) and Newmax — and by HP Inc. He said that the move to remote arguments has put the onus on the parties to get together beforehand to identify the most important things the parties need the judge to answer. "All involved understood the challenge of not being together, and in response the parties worked hard to narrow the issues in dispute," said Fisch. "Efficient justice always demands streamlining and working well with opposing counsel, but even more so for a telephonic hearing."

San Francisco Morrison & Foerster partner Jessica Grant has yet to argue in any case remotely during the pandemic, but she has handled remote arguments in federal court in the Southern District of Florida and the District of Utah, as well as state courts in Florida, Massachusetts and New Hampshire. She said she always takes care to make sure she's in a quiet place with a landline or strong cellular system and that she makes sure to speak slowly, enunciate, and to pause to ask if the judge is hearing her clearly early in the argument.

"As with any oral argument, once the judge starts to speak, it's always a good idea for the attorney to immediately stop talking," Grant said. "This becomes even more important on a conference call when people can talk over one another, which can be frustrating for the court."

Grant's partner Michael Jacobs added that one of the most awkward moments in his career was during a telephonic hearing where opposing counsel didn't hear the judge trying to jump in, notwithstanding repeated attempts. 

"I think it will become more interesting when we do hearings by videoconference," Jacobs said.