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Supreme Court holds first virtual oral arguments

Senior Editor News in Photos

Lawyers appear from their offices and homes

Drone shot

In preparation for the Florida Supreme Court’s historic oral arguments using remote video teleconferencing, Clerk John Tomasino brought in his personal drone  and flew it around the courtroom to yield an eagle-eye view of the court bench, which became the justices’ backdrop, and the counsel podium and seats, which was made available to the appearing lawyers.

Checklist for doing an oral argument at the Florida Supreme Court:

• Have arguments organized and ready. Check

• Have professional attire. Check.

• Ask the neighbors not to crank up the leaf blower or lawn mower at a critical time. Che… What?

OK, so it wasn’t exactly a traditional oral argument at the Supreme Court May 6. For starters, there was only one person in the court chambers, Tyler Teagle of the court’s IT department. He was managing several connections as all five justices and all counsel arguing cases were appearing, for the first time in the court’s history, remotely because of the COVID-19 pandemic.

Social distancing and other restrictions had caused the court to postpone its April oral arguments. But May was back on track, at least digitally, as the court heard four cases (one with six lawyers). It took research, extensive preparation and rehearsals, and a drone. Justices were in their offices, either in Tallahassee or their remote headquarters. Lawyers were at their offices or at the house.

Preparation included watching “as many virtual oral arguments as we could, including from the Fourth District Court of Appeal and the Second DCA,” said Supreme Court Clerk John Tomasino. “We also watched Texas and Ohio supreme courts. That helped me, Tyler Teagle, and Devin Jones [also of the Supreme Court’s IT office] learn what was working and what wasn’t.

Justice Carlos Muñiz“The six appellate court clerks were in pretty constant contact, exchanging ideas, and all six of us also participate in the National Conference of Appellate Court Clerks. NCACC operates a listserv which also was a great source of information. Last, the National Center for State Courts conducted a couple of Zoom webinars, one specifically on conducting a virtual oral argument. All of those tools were invaluable in helping us plan our first virtual oral argument.”

After that, it was a lot of prep work with the court staff and the 12 attorneys appearing in the four scheduled oral arguments.

“I learned a few things on my end on how to make the visual better,” said Tallahassee attorney Katherine Giddings, who appeared on one of the cases. “It’s like anything else, the more you do it, the better you get at it.”

Justices, court staff, and attorneys held rehearsals (a technological linkup without actual arguments or questions) the week before the actual event.

“We tried to get the information out to them as early as possible that it was going to be over Zoom,” Tomasino said. “We shared some documentation; a kind of best practices guide on using Zoom that we received from the Texas Supreme Court clerk of court and we made some modifications.

“Most importantly, we did, in essence, dress rehearsals. We didn’t present arguments, we tried to do it with the four cases and all the people.”

Tomasino said while Teagle is getting a master’s degree in technology, his undergraduate degree is in theater production. He used those skills to produce a detailed script spreadsheet with a step-by-step procedure to running the oral arguments.

Some versions of Zoom allow the use of a digital background to be inserted behind a user. To provide a more uniform appearance for the oral arguments, Tomasino brought in his personal drone and with Teagle and Jones flew it around the courtroom. That yielded an eagle-eye view of the court bench, which became the justices’ backdrop, and the counsel podium and seats, which was made available to the appearing lawyers.

If the background shot would not work on their computers, lawyers were advised to appear in front of a blank wall. One attorney, Senate General Counsel Jerome Hawkes, was able to use the Senate video production facility, normally used for press conferences. He appeared, flanked by Florida and U.S. flags, in front a blue curtain.

“We were very appreciative to the attorneys for the extra time they spent on it,” Tomasino said. “Our nightmare was someone was going to lose their network connectivity, or God forbid, somebody flush a toilet.” [That referred to the U.S. Supreme Court’s first ever telephone and broadcast oral arguments held a couple days previously where somebody did indeed clear a commode in the background].

Giddings said the electronic proceeding followed the same process as an in-person appearance. Rather than showing up at the court at 8:30, lawyers checked in online and were placed in a digital waiting room. Like everyone else watching online, the waiting lawyers could see the oral argument underway in the court, which showed whoever was speaking or asking a question.

When their case came up, involved attorneys were taken out of the digital waiting room and while other watchers would see only one speaker at a time, the participants were placed in a “gallery” view.

“We could see all the justices, one box had a clock on it, so right there on the screen you could see how much time you had, and you could see our opponent. You had control of your own microphone,” she said. “When we were finished, they took us out of participant status and put us back in [the digital waiting room].”

Giddings, who appeared from her home office added, “It came across as dignified, it came across extremely well done. They set it up to work as much like a real oral argument as possible,”

“I did it from my home, not my office,” said Miami attorney Marcy Aldrich. “You worry, will the internet stay on, will the power flip out? Will the neighbors be trimming hedges next to my house?… I called my neighbors and asked them not to do yard work.”

Participating lawyers found pluses and minuses to the system, but were encouraged that the court conducted regular business during the pandemic.

“It was a little bit intimidating and a little bit exciting,” said Orlando attorney Terrence E. Kehoe, who appeared from his dining room. “I was worried about the technology holding up and all that. It was great to be somebody who did it on the first day.

“I thought Zoom worked well, it was easy to identify who’s asking the question and who’s talking to you. I could hear and understand everybody. I thought it was a clear, understandable way to do it.”

Kehoe appreciated saving the travel time to Tallahassee and the convenience of appearing from home, but “I do think you lose something when you’re not in person, even though you can see the five justices. You don’t see them sitting together as a panel and you lose something of that interaction.”

He also had a reminder of the digital perils of online appearances when his internet service went out for two or three hours — but not until the morning after the oral argument. (Lawyers had their phones ready to call in if that had happened during their appearances.)

Aldrich, too, missed the personal touch.

“Lots of people were just heads. That’s part of it,” she said. “Nobody looks good, because the Zoom thing either it colors you out or it makes you look bright red….

“In some ways, it allows a little more time for consideration and the protocol is a little more polite. You can’t talk over each other because it won’t work. Everyone sort of waits and pauses after they talk, because you want to let the justices have a space to ask a question.”

“It has some pluses and minuses,” said Tampa attorney David Caldevilla. “On the plus side, I didn’t have to travel to Tallahassee and spend a night at a hotel…. There is a convenience factor in that I could do it from my office and have all my papers present. It’s a little easier to be able to rely on your notes while you’re doing it through Zoom….

“On the other hand, the Zoom technology doesn’t really give you a very good ability to confer with co-counsel, which you can when you’re in the Florida Supreme Court… I really had to pay attention to any noises, because I didn’t want to speak over any of the justices. I had to keep track of what was going on,” including remembering to mute his microphone when opposing counsel was speaking.

Noting he’s had four or five trial court Zoom proceedings, including one all-day evidentiary hearing, Caldevilla said he expects many more online proceedings, although he still prefers live appearances.

Giddings said the online proceedings didn’t have the “majesty” of actually being in the court, but “to the extent that we weren’t able to be there live, the pros of proceeding forward with the cases is much more important than what we lost not being there in person.”

She may have had the only glitch during the four cases, when her computer apparently garbled her voice for a few seconds. Next time, Giddings said, instead of relying on built-in sound and video resources in her computer she’ll use a separate camera and microphone to boost video and audio quality.

Craig Waters, director of the court’s Public Information Office, said the justices were “very pleased” with the event.

“We saw no problems greater than reminding lawyers to unmute their audio,” he said. “All told, it was a very successful launch of new technology comparable to what we did when we first began livestreaming in 1997 and when we first moved onto Facebook Live in 2018.

“In talking with colleagues around the nation, many of them once again view Florida as a model for using technology to adapt to change like the pandemic. This includes using social media to notify the public about important developments, such as the drastic changes forced on courts by the coronavirus pandemic. The Florida Supreme Court, for example, remains one of a few courts using Facebook Live to distribute its gavel-to-gavel video and audio of arguments directly to the public in real time. But the pandemic is pushing more and more of these other courts to consider the same solutions Florida has developed during many years of crises like hurricanes, anthrax scares, wild fires, and similar problems that have made remote access to our courts even more important to the people.”

For Aldrich it was a day of double firsts. Although an experienced appellate lawyer with multiple DCA appearances, it was her first oral argument at the Supreme Court as well as the court’s first remote argument.

“I was mainly impressed. The court did a fabulous job of taking the lawyers through the process of doing test runs, making us all comfortable,” Aldrich said. “There are lawyers with different degrees of technological savvy. Changing how you practice overnight is really intimidating.”

More lawyers will get to make that “overnight” adjustment in June. The court decided on May 12 that its June oral arguments, set for June 2, 3, and 4, will again be remote.

Plenty of time to alert those hedge-trimming neighbors.

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