American Academy of Appellate Lawyers Introduces Best Practices for Appellate Oral Argument

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ROCKVILLE, Md. (July 20, 2020) – The American Academy of Appellate Lawyers (AAAL), composed of 350 Fellows who practice in every state and in all federal appellate courts, recently announced best practice recommendations for appellate courts and lawyers to help navigate the challenges of remote oral argument during the coronavirus pandemic. A taskforce of AAAL lawyers who have experience with remote argument considered the factors that counsel, judges and the public face during appellate hearings. The driver of this initiative springs from the AAAL’s commitment to the value of oral argument as a fundamental part of our justice system.

Based on the personal experiences of appellate lawyers who have participated in remote oral arguments, the recommendations offer solutions that ease complications of the abrupt transition to audio and video oral arguments to keep remote arguments as similar to in-person arguments as possible. "Our recommendations will bring appellate lawyers and the courts closer to the 'normal' in-person arguments that we believe are crucial to our practice. Choosing the best procedures for remote arguments is essential to appellate practice and achieving justice even while the virus continues to pose a threat," said James Layton, who chaired the AAAL taskforce. "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."

To read the full task force report, click here.

The recommendations include optimizing technology choices with a strong preference for the use of video over audio, ensuring sound quality so that all parties can clearly hear each other, ensuring that the public has access without causing any disruption to the flow of the hearing and having a technology support staff member available throughout the hearing.

The taskforce also believes that the court should provide practice sessions and access to technology support whenever possible. Both judges and counsel need to be prepared with an appropriate physical location for conducting the hearing and all parties should test and retest their technology setup.

The court should have a process to control the flow of the argument and prevent disruption which includes identifying the speakers with verbal introductions for audio and with on-screen markers for video arguments. The judge should ensure that the lawyers understand the procedures including minimizing cross-talk during questioning so that the court and counsel can hear all that is said. All panel participants should be visible for the duration of the argument, with non-speaking and passive participants muted. Judges should wear robes and appear before a simple neutral background.

Three principles have informed the AAAL's recommendations:

"These best practice recommendations are the latest manifestation of the Academy's ongoing efforts to enhance and advance oral argument. Academy task forces and initiatives have urged that oral arguments be held with greater frequency in federal courts of appeals and supplied training programs to make arguments more effective," said Howard Goodfriend, its President. "These efforts will continue because the Fellows believe firmly in the system of appellate justice and embrace the Academy’s core mission to preserve it and make it better."

Since its founding in 1990, the American Academy of Appellate Lawyers (AAAL) has committed itself to advancing the administration of justice and promoting the highest standards of professionalism and advocacy in appellate courts. Membership in AAAL is reserved for experienced appellate advocates who have demonstrated the highest skill level and integrity.