By Justin Heminger

Law360 (January 26, 2021, 5:42 PM EST )

Justin Heminger

As the pandemic drags on, most federal courts have shifted from in-person to virtual hearings and arguments. Even when litigation returns to a more normal footing, many federal and state courts will embrace virtual arguments as a more ideal option than telephonic proceedings. 

As with any new technology, virtual arguments present a learning curve. This article identifies best practices for those arguments, offered as 10 practical tips in three categories: technical, visual and audio.[1]

Technical best practices come first because the most critical step in a virtual argument is to make sure that the technology works so that you can participate. Visual best practices come next because the visual element involves more variables and requires more planning and practice. The final critical component of a virtual argument is audio, and making sure that the judges can hear you.

1. Technical Tip: Get comfortable with virtual platforms.

In what qualifies as a supermajority, 10 of the 13 federal courts of appeals are using Zoom for virtual arguments. Many federal district courts have followed suit.

Zoom is one of the easiest to learn and most widely used videoconferencing platforms. If you have never used Zoom, download the application to your smartphone or other personal device and practice with a friend before your first virtual argument. Even better, volunteer to participate in a virtual moot for a colleague.

Many federal courts have adopted similar protocols for virtual arguments. Common elements include the following: (1) The court emails specific instructions to the arguing attorney with a personalized Zoom meeting link for their use on argument day; (2) the court offers the arguing attorney a chance to test out their Zoom connection with court staff; and (3) the court maintains a separate Zoom video window for the argument timer so that attorneys can track their time during the argument.

Although Zoom is the most popular platform, some courts use other platforms. For example, the U.S. Courts of Appeals for the First and Eighth Circuits have fashioned a thin circuit split by using Microsoft Teams. And the U.S. Court of Appeals for the Federal Circuit is holding arguments telephonically.

2. Technical Tip: Simulate argument conditions for your moot.

One goal of a moot is to practice your argument under realistic conditions. This should include simulating the virtual environment that you will use on your argument day. This allows you to practice using the technology and to solicit feedback from the moot participants about the visual and audio elements that are unique to virtual arguments.

3. Technical Tip: Avoid VTC if you can.

Video teleconferencing, or VTC, equipment is a hardware technology system not designed for virtual arguments, when attorneys and judges each participate individually from separate locations, and when most will use a desktop, laptop or personal device.

To illustrate, staff for one federal circuit court reported that some VTC cameras track the speaker's movements, creating a dizzying motion for the judges.

That said, VTC may still be the best option for some attorneys. If you do use a VTC setup, make sure your technical staff provides support before and during your argument.

For most attorneys, a simple setup using your typical work device will do the trick. Zoom and Teams should work seamlessly with your home or office internet connection.

You can even use a personal device — an iPad, for instance. For example, the clerk's office at the U.S. Court of Appeals for the Ninth Circuit has confirmed that you do not need specialized equipment to participate in a virtual argument and that judges have participated in arguments from home on their tablets.

4. Technical Tip: Work closely with the court's technical staff.

Each court is handling virtual arguments differently, but a few common themes appear.

First, courts allow attorneys to test out their virtual setup, often by hosting a virtual session during a designated window each week. You should take advantage of this opportunity, no matter if this is your first or 10th virtual argument. Technical settings may have changed since your last argument, either on your end or the court's.

Second, the court may provide specific directions about its technical setup and preferences. Follow these instructions closely. And always review the court's most recent guidance because it may change from one argument session to another.

Third, companies like Zoom frequently update their software. Check for and install any software updates shortly before your argument.

5. Visual Tip: Sit, don't stand.

Visual best practices come before audio because the visual element involves more variables and requires more planning and practice.

Although attorneys are trained to stand behind a podium to deliver an in-person argument, it is more effective to sit to deliver a virtual argument.

Consider this simple proposition: A high percentage of communication is nonverbal, and one of the toughest challenges of virtual arguments is effectively employing nonverbal communication.

If you stand during a virtual argument, the camera is likely to be trained on you from a distance, perhaps partially obscured behind a podium. Even if you are physically located a thousand miles from the judges, you are just a few feet or less away from them on their screens. What the judges see on their screens is a set of small squares for the arguing attorneys and other judges.

If the camera captures you from a distance, the judges cannot see your face clearly and cannot read your facial expressions. This is distracting and can even diminish your credibility. The best way to appear credible and engaging is to sit with the camera trained directly on your head and shoulders.

Cameras also magnify physical movement, even small gestures. You need to remain relatively still during a virtual argument — no swaying, shifting or large hand gestures. Sitting will help you minimize unnecessary movement.

Anecdotally, most attorneys are sitting for virtual arguments. One colleague reports that staff at a federal circuit court informed her that the court preferred attorneys to sit, not stand, during argument, and that 90% to 95% of attorneys did so. Or as another colleague wisely recommends to arguing attorneys, be like the TV news anchor, not the weather person.

6. Visual Tip: Get your lighting and camera angles right.

The ideal setup is to face a window that illuminates your face with natural light. In other words, sit facing the window and then place your device directly in front of you.

Avoid backlighting — where the primary source of light in the room is behind you — at all costs. Stage lighting, for example, pointing a lamp directly at your face, is also less than ideal because it creates a headlight effect. If you cannot face a window, the next best option is to increase the overall amount of light in the room.

Make sure that your camera is at eye level so that you can comfortably look directly ahead; the camera should capture your head and shoulders.

Finally, remember that you are on camera. To make eye contact with the judges, you need to look directly into the camera, not at your device's screen. Be sure that you know where the camera is and look directly into it when speaking.

7. Visual Tip: Use a neutral background.

This tip has a subjective element to it, and many attorneys working from home today face practical constraints with their remote workspaces. Ideally, your background is professional, but what is crucial is that it not be distracting. Bland is good.

8. Visual Tip: Dress for court.

Stating the obvious, you should dress as you would when appearing in court. Most colors look fine on virtual platforms, but darker colors are generally better. Avoid patterns, lighter colors and bright green, as some virtual platforms have green-screen settings.

9. Audio Tip: Adjust your audio settings.

Some attorneys use headsets to improve audio quality. But the built-in microphone in your device is probably of high enough quality to work fine for virtual arguments.

Whichever microphone option you use, make sure your audio settings are correct. Zoom offers two audio settings: (1) letting Zoom automatically adjust microphone volume, or (2) setting the "input level" at a fixed volume. Either option can work, but make sure that you test your audio level during your moot and your practice session with court staff.

Make sure that your speakers are loud enough so that you can hear the court, but no louder. The sound from your speakers can affect the quality of the audio that the judges hear.

10. Audio Tip: Plan to mute and unmute yourself.

During an argument session, court staff may remotely turn the attorney's camera on at the appropriate time, but it is usually the arguing attorney's responsibility to unmute and mute their microphone. If you want to look like you know what you are doing, remember to unmute yourself before you begin speaking and to mute yourself again when you finish.

Finally, in a virtual setting, it can be easy to forget pleasantries and formalities. Greeting the court with a simple "Good morning, your honors" will always be in style. That also allows you to confirm that: (1) you successfully unmuted yourself (tip 10); (2) the court can hear you (tip 9); and (3) the judges have identified which of the tiny faces on their screen is now speaking to them (tip 5).

Conclusion

Thankfully, federal and state courts have responded to the pandemic by finding innovative ways to fulfill their indispensable role in our society, including through virtual arguments. These 10 tips should help you prepare for your next virtual appearance. Now, sit down and argue — virtually — for your client.

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Justin D. Heminger is a senior litigation counsel in the Environment and Natural Resources Division at the U.S. Department of Justice. He was previously an associate at Wiley Rein LLP.

The opinions expressed are those of the author and do not necessarily reflect the official position or policies of the Environment and Natural Resources Division, the Department of Justice, or the United States, or the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Several federal circuit courts have posted helpful guidance online. For example, the Fourth Circuit has posted Videoconferencing Tips for Counsel on its website. Likewise, the Tenth Circuit has prepared a Guide for Participating in Remote Video Oral Arguments via Zoom for Government, available on its website. The Fifth Circuit shares a useful guide directly with arguing attorneys.

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