Mary-Christine (M.C.) Sungaila of Haynes and Boone (Photo: Courtesy Photo)

In his 2013 book, "Tomorrow's Lawyers," Richard Susskind predicted that, "for tomorrow's lawyers, appearance in physical courtrooms may become a rarity. Instead, virtual appearances will become the norm, and new presentational and advocacy skills will be required." He opined that virtual courts would "become commonplace in due course," but not in the short or medium term.

Enter COVID-19.

Since the nationwide shutdown in March, half of the high courts in 50 states have heard arguments remotely, and within two months, every appellate court in the United States, state and federal, likely will have held oral argument remotely—including, for the first time, the U.S. Supreme Court.

How do you prepare for and present remote appellate arguments? Here are five tips.

Check out the field before game time. Before in-person oral argument, it is helpful to attend argument the day before your own to become familiar with the courtroom and to see the particular judges on your panel in action. It is also helpful to view or listen to recordings of prior oral arguments involving members of your same panel. In the new virtual realm, it remains helpful to see prior in person and remote arguments with members of your panel, to familiarize yourself with the panel and to see how they prefer to conduct argument in the remote setting.

It is equally important to understand how each court sets up remote oral argument. Which program do they use to connect? The U.S. Court of Appeals for the Ninth Circuit uses Cisco Jabber; the Texas courts use Zoom; the California Supreme Court uses Blue Jeans. You will want to make sure you have these programs on your computer before argument and know how to use them.

You will also want to see how the computer screen will look for remote argument in your particular court. The Texas Supreme Court displays each of the justices against a virtual background of the interior of the real courtroom; you are able to see each of their faces equally, along with both advocates, during argument. The California Supreme Court, on the other hand, has three or four justices in the actual San Francisco courtroom, spaced out to comply with social distancing, across the bench. The remaining three or four justices appear in separate screens from their individual remote locations. This makes it impossible to gauge the reactions of the justices in the courtroom, until one of them asks a question and the camera closes in on them. The rest of the time, the camera is too far away from the bench, at the back of the courtroom, to be able to gauge a majority of the court members' real-time reaction to your presentation. The Ninth Circuit shows each member of the court in a separate thumbnail screen, with the court's countdown clock in another thumbnail, and shows only the advocate speaking, not counsel for both sides at the same time, as the California Supreme Court does.

Many courts provide a tech run through and argument tip sheets. Study those. Many bar associations, too, are providing information about new COVID-19 rules and procedures; check their websites for information on remote argument procedures in your court. The Appellate Courts Committee of the California Lawyers Association, for example, is posting as a public service Zoom interviews and written questions and answers with supervising staff attorneys and clerks about remote oral argument in the Ninth Circuit, California Supreme Court and state courts of appeal.

If co-counsel or your client would like to "attend" argument, find out how to arrange for that with the court (most arguments are simultaneously livestreamed on YouTube or the court's website, but not always). And have an independent, real time way to confer with your co-counsel—text messages on a muted cell phone, for example.

Make sure your home field is in order. For remote video arguments, your own home becomes part of the playing field. Choose an appropriate room in your house, make sure the lighting is good for video, and consider a lectern. Dress formally, as though you were in a physical courtroom. Consider placing your laptop high enough so you are not staring down at the justices. Consider standing, not sitting. Standing ensures you are more energetic in your presentation, and is how you would present at an in-person argument. Make sure your internet connection works, and make sure you have a way to get back into the argument session if your connection drops for some reason.

Telephone versus video arguments. The techniques for video and telephonic arguments vary. With a telephonic argument, it is important to reduce paper rattling and noise distraction; the most common approach to reducing this is to lay all of your papers across a towel on your desk. With a video argument, you are responsible for creating part of the courtroom stage in your own home or office, and you have more than just your voice to work with in conveying your case to the appellate panel.

Oral argument give and take—how questioning differs from in-person argument. In reviewing dozens of remote appellate arguments held over the last month in several different appellate courts, I have seen one common element: Expect more uninterrupted time at the beginning to make your case. Questioning is different too. Judges and justices may talk over each other more, asking their questions simultaneously. Court members tend to focus on asking discrete questions they themselves are curious about rather than directing questions at counsel in an effort to persuade their colleagues. This latter point seems to be particularly true where the court does not conference before argument.

In a telephonic argument, it can be particularly challenging to identify which member of your panel is speaking; some judges will help you out by identifying themselves before asking their question, but in the heat of battle sometimes that does not happen. If the judges do not state their names before speaking, pause for a moment longer before answering so you can discern who is speaking. On a video screen where many justices are pictured at the same time together, it may also take a bit longer to identify the judge who is questioning you. (The Texas Supreme Court solves this problem by having the justice asking a question "pop up" in the center of the screen as the justice asks it.)

Remote oral argument focuses all participants' attention on the content of the speakers' words. It is therefore even more important to answer a judge's question directly as soon as you can, and provide context for your answer up front. It is also helpful to provide a roadmap of your argument, since that (and not body language) is mostly what you have to work with.

Brush up on your public speaking skills. Make sure you have a clear, pleasant and strong speaking voice. Speak at a proper volume, and not too quickly. Eliminate filler words like "um." Pause for effect. Focus directly on the core of the problem or question posed by the panel. And wrap it up with a two or three sentence conclusion that drives your points home and clearly states the disposition you want.

Mary-Christine (M.C.) Sungaila anchors Haynes & Boone's California appellate practice, and teaches in Loyola Law School's Ninth Circuit Appellate Advocacy Clinic. She has presented over 40 arguments before appellate courts in California and across the country.