The Maryland appellate courts’ pandemic-compelled move to oral arguments by videoconference rather than in person could alter the subtle but often crucial dynamics of these sessions in which attorneys try to convince the judges to see the law their way.
In person, the lawyers can see – and sense — how the panel of judges is responding to their arguments. More important, the lawyers can see how their answers are received not just by the judge who asked the question but also by the fellow judges who will decide their case, said longtime appellate attorney J. Bradford McCullough.
For the judges, the in-person sessions often serve as a way for them to convey not only to the attorney but to each other their views on the legal argument. This judge-to-judge conversation occurs not just in the way judges ask attorneys questions but also in their body language, added McCullough, of Lerch, Early & Brewer Chtd. in Bethesda.
Such subtlety might well be lost when arguments are presented remotely.
The Maryland Court of Special Appeals, the state’s intermediate appellate court, held its first oral argument by videoconference Friday. The Court of Appeals, the state’s top tribunal, is considering holding remotely its next round of oral arguments, slated for May 12 and 13.
Court of Special Appeals Chief Judge Matthew J. Fader said after the argument Friday that in-person and remote arguments are not significantly different.
“Our objective is to have oral arguments change as little as possible,” Fader said.
Friday’s argument “showed a good amount of interaction between the judges and the attorneys,” Fader added. “We’ve been pretty pleased with the ability of the judges to interact with the lawyers, approximating the same way they do during oral arguments.”
Fader said he never expected to be organizing oral arguments by video link in the face of a global pandemic when Gov. Larry Hogan appointed him chief judge of the intermediate appellate court in 2018.
“We’re trying to adjust to safely accommodate what’s going on in the world and still get the business of the court done to the extent we can do so safely and in conformance with all of the directives that have come down,” Fader said.
McCullough said remote arguments will present a challenge for him and for his fellow appellate advocates, who prefer to see how the judges are reacting and interacting.
“You always need to keep your eyes on everyone” during oral arguments, said McCullough, who will argue a criminal appeal before the Court of Special Appeals in May.
“You’re not talking to just one judge,” he added. “You’re just going to have fewer visual clues and it’s going to have an effect on the argument.”
But McCullough said he is keeping an open mind about arguing cases from his living room rather than in the courtroom as the Maryland Judiciary seeks to combat the spread of COVID-19.
“I don’t know what to anticipate,” McCullough said. “Until we have some experience, we don’t know how it’s going to be different.”
The appellate attorney added he will take certain precautions for the newfangled arguments, such as making sure he dresses appropriately and keeps the family pet in check.
McCullough said that he does not want to replicate “the stories about the TV anchors wearing shorts under their blazer” and added that he will be “making sure the dog isn’t barking.”
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