A year into the pandemic, most litigators have by now had a Zoom argument. But as evidenced by the experienced Texas lawyer, Rod Ponton, who unwittingly appeared for his Zoom hearing as a cat, it is never too late for some tips. Here are our Top 10 for appellate arguments, many of which apply to any important video-conference:
1. Obtain the right equipment, especially a webcam with a built-in microphone. Even if you typically use the camera and microphone on your laptop for most video-conferences, borrow an external webcam to use for an argument and make sure you test it beforehand. Built-in webcams are generally poor quality and will broadcast a fuzzy image and tinny sound. You may also want to use headphones, but consider how they look to the judges.
2. Open a Zoom account. Most courts use Zoom for their virtual arguments, so you should open a free Zoom account now to get comfortable with the platform. This will also allow you to establish your user name. Because it will be visible to the judges, you will want to use your actual name. When your argument comes, make sure you are using the latest version of Zoom.
3. Background. Some courts allow use of a virtual background. But they don’t look natural and sometimes create a halo effect or, worse, cut off a small part of your head. It is better to be in your office without a virtual background. Remove anything distracting behind you. A blank wall works well. If there is a window behind you, close the blinds.
4. Sit or stand. Most courts let you choose. Do whichever works best for you. But it is challenging both to be close enough to the camera and still remain in frame to sit during your opponent’s argument. Many of us find sitting to be a luxury.
5. Consider lighting. The lighting in your office will probably be fine, but we have seen arguments where lawyers had poor lighting and it detracted from their argument. Like everything else, test this in advance. If your lighting needs help, the answer can be as simple as an inexpensive LED desk lamp; many even let you control the color of the lighting. A warm setting pointed toward your face can work wonders.
6. Make eye contact. This is critical and where most lawyers can improve. First, take care placing your camera. Set it at eye level; many lawyers position the camera too low and a few too high. Neither is good. Second, when you make your argument, it is important to look directly into the camera like a news anchor. You will want to glance at the judges from time to time to pick up cues, but it is only when you are looking directly into the camera that you are making eye contact with the judges, which is how you engage your audience. For most of us, this takes practice. Do a moot argument using Zoom and get feedback. Here is a trick that works for some of us: print and attach a very small headshot directly atop your camera. You may find it much easier to argue to your presiding judge, for example, and the photo will be so close to the camera lens that no one will be the wiser.
7. Day of the argument. Forward calls on your landline to voicemail, silence your cell phone (some courts want it on to be able to reach you), turn off Outlook and other unnecessary programs, and put an “In Zoom Court Argument” sign on your door. Make sure ahead of time that Zoom is using the correct webcam, microphone, and speakers. The court will likely mute you when you are not speaking; if it doesn’t, mute yourself, but be sure to unmute to speak. Slow down a bit and speak clearly; this is good advice for most of us anyway. The court will likely tell you ahead of time who to call if you have problems. If it doesn’t, ask.
8. Ideally, keep your own time. There will likely be a timer you can see on screen. But this is one thing some courts seem not to have mastered. It can’t hurt to have your own back-up timer in case the court’s timer fails.
9. Have a plan to communicate with co-counsel. Especially if you are the appellant, you may be able to take a note from co-counsel before rebuttal. If your co-counsel is not in the same room, you may want to plan for how to receive such a note. One way is to text. But take care you do not violate any of the court’s rules.
10. Stay calm and carry on. It’s normal to be nervous for an oral argument and to be a little more nervous if you haven’t argued before on video. It’s also normal for something small to go wrong as courts are still new to the process. But whether large or small, stay calm and carry on. Remember Rod Ponton, who, even as a cat, was “prepared to go forward.”