Conrad & Metlitzky recently attended a “State of the Appellate Courts” information session with representatives from the courts of review in which Bay Area lawyers are most likely to practice. Delivering updates on their courts’ reactions to COVID-19 were Susan Gelmis, Chief Deputy Clerk of the U.S. Court of Appeals for the Ninth Circuit; Charles Johnson, Clerk and Executive Officer of the California Court of Appeal, First District; and Jorge Navarrete, Clerk and Executive Officer of the California Supreme Court.
The pandemic has posed fewer logistical hurdles for appellate courts than for trial courts—for example, there are no jury trials or arraignments to coordinate in an era of social distancing. Still, these courts have made major adjustments in the wake of COVID-19, some of which may continue after the pandemic has been brought under control. Below are some of the helpful tips and updates we learned. And if you have an argument scheduled before one of these courts, check out Ellen Richmond’s advice on preparing for and delivering your best remote oral argument.
Ninth Circuit
Oral argument will be held via Zoom at least through September. The Ninth Circuit, which has streamed oral arguments to the public for years, has been holding argument via Zoom since early in the pandemic, and its courthouses remain closed. Ms. Gelmis expects remote arguments to continue at least through September, when the court plans to hold its first en banc proceedings since the pandemic began—also by Zoom.
The Court’s A/V specialists will provide Zoom test instructions. Counsel who have an oral argument scheduled can expect an email from the Ninth Circuit’s audio/visual specialists about two weeks prior, including instructions on how to test the Zoom platform.
Email is the best way to reach the court. The Clerk’s office presently has only a skeleton crew in the courthouse, so an email to questions@ca9.uscourts.gov is the best way to ask questions that would normally require a phone call. Emails should include the relevant case number and a telephone number at which you can be reached.
Deadline extensions will require a showing of good cause. Early in the pandemic, the court would grant essentially any extension request mentioning COVID-19. The court is reviewing extension requests more closely now that attorneys have had time to adjust to the new normal. A recent written update advises that the court “will continue to extend non-jurisdictional filing dates as needed but will now require a motion and a showing of cause pursuant to Circuit Rule 31-2.2.” The court encourages attorneys to use its Form 14 for such requests.
Hard-copy briefs are required. The Ninth Circuit temporarily suspended—but has now reinstated—its requirement that parties submit paper copies after first filing their briefs electronically.
Some changes will likely persist as the court reopens. Some measures will be phased out gradually. For example, Ms. Gelmis anticipates that for a time after courthouses reopen for oral argument, remote appearance will continue to be optional or even required for non-local participants. Other changes may be permanent. Increased use of email to communicate with the Clerk’s office, for one thing, will likely remain the norm.
California Court of Appeal, First District
Oral arguments will be held using the BlueJeans videoconferencing system for the foreseeable future. After initially postponing oral arguments entirely and then holding them telephonically through CourtCall, the court switched in June to the BlueJeans videoconferencing platform. Mr. Johnson did not give a timetable for a return to in-person arguments.
Court staff will provide videoconferencing instructions. In advance of an argument, the Court of Appeal reaches out to attorneys with cases set for argument to provide instruction on and test the videoconferencing system.
Opinions and filings are back to full speed. Mr. Johnson reported a dip in both notices of appeal and case resolutions in March and April, at the start of the pandemic. But now, the court is cranking out opinions at its typical pace, and new cases have also returned to pre-pandemic levels. Attorneys should therefore expect opinions to issue within 90 days of argument, per Article VI, section 19 of the state Constitution.
California Supreme Court
Oral arguments will be held on BlueJeans for the foreseeable future. The Supreme Court, which had never held a remote oral argument before the pandemic, also selected the BlueJeans videoconferencing platform. The court has now heard more than 30 remote arguments since April. Remote argument will likely continue until travel becomes significantly safer. Although Mr. Navarrete did not give a timetable for in-person arguments, the Court’s general remote staffing plans currently extend through October 5.
There is a new format for argument—each side gets 5 minutes without interruption. Under special rules for remote arguments, the justices will permit each side five minutes of argument with no interruptions before they start asking questions. After the initial five minutes, argument and interruptions should proceed as usual.
Court staff will provide videoconferencing instructions. The court reaches out to counsel as soon as a case is placed on the argument calendar to provide instruction on BlueJeans. The court runs group test sessions of the videoconferencing system in the week before argument.
E-filing is now mandatory for represented parties. Before the pandemic, the Supreme Court still required paper filings in cases that had been accepted for review. (Writ applications could be e-filed.) Electronic filing is now mandatory for attorneys in all cases.
The Clerk’s office is open. Unlike the Court of Appeal, the Supreme Court Clerk’s office has remained open and still takes telephone calls.
Dispositions have held steady. Mr. Navarrete reported that COVID-19 has not affected the justices’ ability to resolve cases at their normal clip. He did note that there have been additional emergency writ filings related to COVID-19.