Longtime readers know that I’m a huge fan of oral argument. Giving counsel a chance to address the Court’s questions before the decision conference strikes me as vital.

But for obvious reasons, recent events have complicated courts’ efforts to hold argument.

It’s been fun to follow the workarounds that they’ve applied. A few basic strategies emerge:

  • Postpone oral argument. SCOTUS and SCOTX took this approach. Appealing in its simplicity.
  • Hold oral argument by videoconference. The Ninth Circuit the North Dakota Supreme Court are doing this. I have to admit: It’s fun to see some of the justices all robed up at home. But I’ve got just enough experience trying to teach a law school class by Zoom to get a headache looking at this screenshot:

To be clear, this post is not the result of any kind of systematic study. I just pay attention to this stuff on Twitter. I’d love to hear how other courts are handling this.

All this naturally prompts a follow-up: Which option is the best way to go?

I’m an oral argument purist. I think the discussion is invaluable and I doubt that it can be adequately replicated by teleconference or videoconference. So if I were running things, I would follow the lead of SCOTUS and SCOTX and postpone arguments. Second choice would be videoconference.

After that, I’m honestly not sure if I’d rather argue a case to seven justices over the phone or just have it decided on the briefs.

Update 4/2/2020

The Twitterati tell me that CA7 is holding telephonic oral arguments, and that the Minnesota Supreme Court is holding virtual oral arguments. I appreciated this post:

I also appreciated the generous feedback that Justice Thissen gave the participating lawyers a few hours later.

And finally, CA4 announced on April 1 that it was postponing its May 5-8 oral argument session. The court explained that “[c]ases tentatively calendared for May 5-8, 2020, will be continued for argument at a later session, scheduled for argument by video-conference or teleconference, or submitted on the briefs, at the direction of the panels in each case.”