Couch Potato Justice

When the Ninth Circuit Court of Appeals (the federal appeals court for the West and the Pacific) met to consider Kevin Cooper's death penalty appeal, the courtroom was full, but none of the justices was present in person. All three were at remote locations, and one was present only by audio, because the video link was down.

The trend toward remote court hearings is growing, and Mary Schroeder, the chief judge of the Ninth Circuit is concerned:

In an interview late last week, Schroeder, who is based in Phoenix, said she was troubled by the development, and may propose curbs on judicial videoconferencing.

"I was at the courthouse in San Francisco on Tuesday, and I was very surprised and concerned when I learned all three judges were on video," Schroeder said. "That was a first. Several other judges are concerned as well, and we are going to have a full discussion as soon as we can.

"I don't think this is going to happen again."

The practice grew up innocently enough--lawyers from Guam asked for the privilege because the trip for a brief oral argument was long and expensive. In many routine appeals, argument is brief and unlikely to change the result.

In a death penalty case, the problem is more serious. Is something lost because the judges and the lawyers can't see one another in three dimensions, and look one another in the eye?

I've had some experience, not with video, but with telephone appearances in the trial courts. I don't like them, because the visual clues are entirely missing, but with traffic in the Los Angeles-Orange County area being as bad as it is, you can't always justify charging a client for a four-hour round trip to a court, for a three-minute appearance where nothing is done but setting a date. In such instances, teleconferencing through CourtCall, the company that has the contract, saves time and client expense.

Indeed, some judges now post tentative rulings on motions on the Internet, encouraging lawyers to "submit" on them, that is, accept the ruling. If the ruling, for example, says a complaint is defective but may be amended, it's often not worthwhile to appear.

All of this, of course, is a loss. Law students participate in "moot court" (mock oral argument) to hone their advocacy skills, and the Socratic method of question, answer and debate still rules in the law schools. In trial courts nowadays, it's rare that such skills are needed. The motions are studied by staff attorneys or law clerks, and minds tend to be made up in advance. A few old-line judges used to enjoy discussing the case law in open court, and the intellectual challenge was stimulating. It doesn't happen much. Short of trial, the premium is on written advocacy, which, fortunately, I'm good at.

In appellate courts, even with video appearances and judges who've already studied the record and often made up their minds in advance of argument, video may have it's place, but one loses something. The give and take is a bit artificial and an air of unreality descends over the proceedings.

It's like the difference between live theater in a small house and TV drama. Live theater has something special. Of course, most of us are couch potatoes more than theatergoers these days. It's too bad. And it's too bad that the immediacy of contact with appellate judges, whom one sees only in oral argument, is in jeopardy.