This article was originally published in the July/Aug 2021 issue of San Diego Lawyer Magazine.
By Wilson Adam Schooley
This past year presented us with extraordinary challenges. Few sectors of society were spared. Some activities could be paused: sports, travel, dining out. But some vital functions, like the justice system, by their nature could not abate. Crimes and disputes occur and must be adjudicated. How has our justice system locally navigated the balance of persevering while protecting public health?
I spoke with Justices Judy Haller and Joan Irion of the Fourth District Court of Appeal, Division One, to find out.
The challenge was to continue hearing appeals without in-person appearances. Oral argument is vital to the appellate process. It can alter the outcome of an appeal. The court suddenly had to transition from in-person to virtual arguments. The last in-person argument was in March 2020. The court went virtual within 30 days, hearing its first virtual case in April.
Technological glitches were inevitable. There were snafus and hurdles, such as switching video platforms. But those decreased each month. There were understandable human challenges. Lawyers, arguing from their home or office desks, sometimes slipped into informality or were distracted by their anxiety about the technology. As time passed, though, practitioners became more accustomed to the format, less anxious about technology and more adherent to formality.
Overall the transition was surprisingly smooth. Court and counsel adapted with comparative speed and ease. The clerks check everyone in, ensure mics are on, videos functioning, and everyone is on mute until their case is called. If tech issues arise during argument, the court clerk intervenes. The process became fairly seamless.
There were enough instances of counsel informality in clothing or location that Presiding Justice McConnell cautioned counsel about both. But neither Justice Haller nor Justice Irion could recall an inappropriate experience evocative of viral YouTube videos like unclothed family members streaking by or unseemly video links. Indeed, there has not been a single incidence of incivility or need for bailiff intervention. This is characteristic of our court. We are blessed with a collegial court and bar. The appellate bar is small and everyone knows one another well, so there is a disincentive to incivility.
There have even been benefits to the experience, so that post-pandemic, virtual argument may remain an option. It has always been true that lawyers unable to attend argument could appear by phone. Now, they may be able to appear virtually. Less expensive virtual arguments might make it easier for court and counsel to facilitate pro bono or pro per appearances. Compared to five years ago, there are many more pro per litigants in the court — as many as several per month. (For indigent or pro per litigant resources, see https://selfhelp.appellate.courts.ca.gov or www.appealhelp.org.) The process also makes oral argument more widely accessible — more people can listen to oral argument virtually than can fit in the court hearing room.
Justice Haller prefers oral argument in person, with all parties in attendance. It is a more fully engaged experience for everyone. Many advocates agree. As any theater and film actor will affirm, there is an energy and connectivity in live “performances” that cannot be duplicated virtually. But both justices feel the virtual experience has not sacrificed much: communication between justices has not been impeded — they meet by video after each argument — nor has communication between court and counsel; the justices’ questions are a more accurate indicator of inclination than body language or eye contact.
Overall, everyone has been getting better at the virtual process and adapting new strategies. More lawyers have added tech savvy to their skill sets. And the path to this success has been paved with humor and collegiality. In the first months of the pandemic, attorneys did not always realize when they were on video. During one oral argument, an attorney struggling with his connection said out loud: “Please God, let me connect.” Justice McConnell replied, “I’m not God, but the court can hear you just fine.”
Wilson Adam Schooley is a reformed big firm partner and current appellate specialist practicing primarily civil rights and indigent criminal defense law; a professional actor; published author and photographer; Past Chair of the ABA Civil Rights and Social Justice Section; member of the ABA Journal Board of Editors; Delegate to the ABA House of Delegates; Presidential Appointee to the Coalition for Racial and Ethnic Justice; and member of the SDCBA Board of Directors.