Video is better than audio. There should be public access. Attorneys should be allowed to have practice sessions, and judges should still wear their robes.

Those are a handful of recommendations that a the American Academy of Appellate Lawyers recently released as part of a list of best practices aimed at helping attorneys, judges and court staff hold oral argument sessions remotely. The suggestions are set to provide guidance to the legal industry as it begins to navigate virtual argument sessions in the wake of the COVID-19 pandemic, which has shut down courtrooms across the country and caused lingering health concerns over in-person court proceedings.

"We wanted to come up with a list of best practices, and we wanted to get those out while this pandemic was affecting the administration of justice across the country," AAAL president Howard Goodfriend said. "They are basically recommendations for courts to enhance and smoothly transition to a remote argument format in the hope that the process would be as similar as possible to in-person argument."

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The guidance is based on input from 350 AAAL fellows who practice in every state and all federal courts, and comes from insights gleaned from the various Zoom calls and phone conferences they've held in recent months.

According to Goodfriend, the AAAL, which is focused on advocating for the importance of oral arguments, began looking into developing guidance on remote oral arguments in early April, since many member had recently seen their lists of argument sessions quickly get cancelled as the COVID pandemic swept across the globe. As courts began expanding their online oral argument capabilities, some encountered hiccups that helped provide the group with guidance not only on the simple and easily avoided technological missteps, but also on the subtler issues particular to oral argument sessions, like how judges should be able to engage in cross-talk during the sessions.

"It's a nuts-and-bolts approach," Goodfriend said.

The recommendations cover a range of topics from technology choices courts should make to the ways judges and attorneys should prepare for the sessions. It also provides guidance on how arguments themselves should be conducted to help make the flow of the sessions as close to in-person arguments as possible.

Specifically, the AAAL is recommending courts and parties use land lines and computers with fast and stable connects, courts make technology support personnel available, and courts give counsel detailed descriptions of the process before hand. During arguments, the AAAL further recommends that courts have a method for identifying the speaker, that courts inform attorneys in advance if questioning will be done sequentially, and judges, as well as counsel, try to find a place with a simple, neutral background, rather than using any virtual backdrop.

The AAAL is also recommending that courts choose video arguments whenever possible, as many members expressed "a very strong preference for video arguments" over audio-only sessions.

"The 'cues' that visual interaction brings to an argument are lost when argument is conducted over the phone. And the problem of talking over, or cross-talk, becomes acute," the AAAL said. "That may prompt use of 'rules of transition' from question to argument that make for a stilted flow and use valuable time."

According to Goodfriend, the report is the first step in a three-phase project related to oral argument. Along with the broad guidance released that were recently released, the group plans to provide another report providing more in-depth guidance for lawyers, and then a third report looking further into the future in terms of how remote oral arguments may become a part of the post-COVID legal landscape.

"We encourage appellate courts to review our recommendations and adopt those that suit their unique rules, practices, procedures and resources for more seamless audio, visual and hybrid arguments for the duration of the pandemic and beyond," James Layton, chairman of the AAAL task force that developed the guidance, said in a press release.