Madame Chief Justice and May it Please the Court, Wait, I’m on mute! Can you hear me?

21 Jul 2020 1:56 PM | Deleted user

By Jon Berkelhammer,
Ellis & Winters, LLP

On June 16, I had the pleasure of being one of the first handful of attorneys to argue before the North Carolina Supreme Court via WebEx.  To say it was a little more nerve wracking than usual would be an understatement.  In addition to actually trying to master the subject matter, there were a number of items to address before the first word came flowing across my lips, and I thought I would pass them along. 

Number one, and probably numbers two and three, get to know Amy Funderburk and Fred Wood.  Ms. Funderburk is the Clerk of the Supreme Court, and Mr. Wood handles the Court’s IT, and they are invaluable resources.  Ms. Funderburk and Mr. Wood scheduled one session with the parties to check out the equipment.  She offered to do as many more as you would like.  I accepted her offer and suggest that you do as well.   Like a trial lawyer who visits a new courtroom before the first day of trial to learn her surroundings, each time you have a session with Ms. Funderburk and Mr. Wood you should be in the same place you will use for the argument.  During these sessions, you should check your lighting and sound.  It is not a good day if you cannot be heard.  To ensure you can be, do not use a wireless connection.  No matter how strong you think your connection is, the day you argue there will be a severe thunderstorm or sunspots and you will start breaking up.  There is no “A” for effort at the Supreme Court. 

Next, which I guess is number four, decide whether you want to sit or stand.  Whichever one you decide to do, do it with Ms. Funderburk and Mr. Wood.  Among the gameday decisions if you stand will be what to do when you are not arguing.  Do I sit and then have the camera capture my less than six-pack abs as I stumble to my makeshift podium or do I walk in and out of the frame.  The Court, I am told, does not care, so we elected to sit for a couple of reasons.  One, it avoided the “what to do when I am not arguing” issue.  Second, it allowed easier access to the record or other information that I had prepared, such as a reference to a list of facts and record citations for the main issues that came up.  By sitting, no one could tell if and when I reached for and relied on those little “cheat sheets.” 

If you elect to sit, test the distance you are from the camera and its height so you present yourself as cleanly as possible in the frame.  No one wants to look up your nose while you are arguing, and you do not want to be peering down at anyone as you speak.  Adjusting the height can be as easy as placing one or more books under your laptop or moving the camera on your monitor.  Also, if you sit, sit still.  I was able to lock my chair to prevent it from rocking, but I could not find a way to make it so it would not spin, and other chairs were too low.  I tried hard to plant my feet firmly and not move below the waist.  I do not know how successful I was, but I am sure you can sit still longer than a seven-year-old.  Practice it.

And, while we are testing how we look on screen, practice how you will speak to the screen as well.  Some people may want to stare directly into the camera as they talk to make the others feel like you are looking at them.  Others may want to look at the Justice who asked the question.  I felt uncomfortable staring at the little camera on my laptop while trying to speak or answer questions (I practiced that).  In addition, by looking at the screen, I felt that I could tell when one of the Justices was wanting to ask a question, though there were no hand signals. 

WebEx allows you to “pin” the participants to one location.  Although I am not sure whether the Justices would play “musical chairs” and float from spot to spot if no one else is entering or leaving the “room,” I did not want to take that chance.  Importantly, I wanted to make sure that I knew where the timer was.  The Court will have the timer as a separate participant and therefore on a separate screen.  Pin it in place.  Although the timer is visible, the lack of proximity decreases the utility of the warning lights.  As a result, if you know where the timer is, you can check it easily throughout your argument. 

Finally, and to end where this began – do not mute yourself.  Being told by one or more justices you are on mute is not the comment you want.  If you cannot keep quiet for the time your opponent is arguing, get someone else to argue for you. 

I am sure others have additional tips for arguing in this new age.  Reach out to them.  And, of course, enjoy your thirty minutes of fame. 

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