How To Nail Your Remote Argument In The 7th Circ.

By Lauraann Wood
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Law360 (April 22, 2020, 5:43 PM EDT) -- You're watching your own clock, your backdrop is your bedroom, and you have no idea whether your argument is sparking an appreciative nod or drawing a sneer from the judge listening over the phone.

Arguing before the Seventh Circuit can be intimidating in the best of times, but arguing remotely under the court's COVID-19 restrictions adds a new set of challenges.

Attorneys who have appeared before the judges remotely in recent weeks say the court is doing its part to help arguments run as smoothly as if they were happening in person. And while argument strategy remains largely the same, attorneys say a few key adjustments go a long way toward removing the awkwardness.

"If I had the choice, I would still be in person, because you miss the facial cues," Christopher Murray of Ogletree Deakins Nash Smoak & Stewart PC told Law360. "But it doesn't really require huge changes to how you handle your argument."

Here, attorneys share how to best advocate for clients from the other end of the Seventh Circuit's phone line.

Put Yourself in the Courtroom Mentally

No matter where attorneys decide to set up shop for their arguments, they should make sure the environment is conducive to getting in the right headspace to address the court, attorneys told Law360.

Amy Saharia of Williams & Connolly LLP delivered her argument from her bedroom, where she has set up her temporary work-from-home office.

Saharia, who argued on the court's first day of restricted operations, said "it was jarring" at first because she was arguing in such a different setting.

But Saharia said she faced a particularly hot bench during her argument over whether Indiana's authority to regulate alcohol can trump federal statutes. Once the judges start asking questions, "you're just kind of in an argument," she said.

"Judge [Ilana] Rovner only allowed me to get out one sentence ... before she started asking questions," Saharia told Law360. "The awkwardness went away, I think, very quickly."

Sean O'Callaghan of O'Mara O'Callaghan decided to argue from his law firm office to stay in the right headspace. His remote argument was his very first appearance before a Seventh Circuit panel. Because the coronavirus pandemic stole his opportunity to argue in person, he opted for an office setting.

"I felt more comfortable there, and it felt more formal than arguing from my living room," he said. "It still is a Seventh Circuit argument, so do whatever it is you have to do to get ready for what is still an important proceeding."

Some attorneys have personal lecterns and stand up as they remotely address their appellate panels. Philip Stern of Stern Thomasson LLP told Law360 he felt comfortable arguing from his desk.

Stern said previous appearances in federal court via phone prepared him for his argument. The process goes smoothly as long as attorneys "act like [they'd] normally act in a conference call," Stern said.

"We've gotten so used to doing so many things by phone in federal court, even before this happened, so not a lot is different," he said.

Watch the Clock

The green, yellow and red lectern lights come in handy while keeping track of argument time in person, so it's important to pay more attention to the clock since those dependable visual cues aren't available right now.

The judges instruct attorneys early on that they're responsible for managing their own time if they anticipate reserving a few minutes for rebuttal, Murray told Law360. That note prompted him to jot down the time he started speaking so he could be sure not to talk through all of his allotted argument time at once, he said.

Murray said it might have been easier for him to track the clock because he didn't face a particularly heavy line of questioning. Time management might prove more difficult for attorneys facing a more lively panel because they "might get wrapped up in answering the judges' questions," he said.

"In that case, it might be a good idea to have a large clock right in front of you on your desk, just so that you can't visually miss it," Murray said. "If you end up getting a hot bench, you don't want to end up losing your time because of your arguments."

Saharia told Law360 that time management is the area where she could have fared better during her remote argument. She said her decision to run a stopwatch on her computer worked for her opening argument. "But I don't think I did as good of a job as I could have done tracking for my rebuttal," she added, "and I got cut off at the end."

U.S Circuit Judge Frank Easterbrook presided over Saharia's panel and warned her as she was approaching the end of her time limit. "But it's harder to navigate the time, I found, when I was talking on the phone," she said.

Maximize Your Space

One perk to take advantage of is that without being confined to a lectern in the courtroom, attorneys can spread their materials out for easy access and reference.

There's a beneficial difference between having a lectern's width of space to place a binder of notes and exhibits and being able to call up materials quickly on a computer screen or spread notes across a desk, attorneys told Law360.

When preparing for argument, lawyers should consider maximizing the space available to them so they're not spending as much time as they otherwise would flipping through an extensively tabbed binder, they said.

"I could have what I wanted at my fingertips. It was actually much more efficient to do it that way," Stern told Law360.

Attorneys "almost never" need to consult the extra materials they keep on hand during in-person argument, Saharia said. But she actually wound up doing just that during her remote argument, so she was thankful she had the expanded access to those documents, she said.

"If you can have available to you whatever you think the most important documents are that you might need remotely, that could be helpful," she said.

O'Callaghan represented Cook County Sheriff Thomas Dart on the issue of whether Illinois bond court judges could order him to place inmates on his pretrial electronic monitoring program. O'Callaghan told Law360 that he maximized his space by sorting materials in piles according to the constitutional issues they addressed.

"But that's not to say that I didn't also have three computer monitors going," he said. "You really can use your environment to your advantage."

--Editing by Aaron Pelc and Jill Coffey.

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