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It’s the Final Jeopardy round. The category is “Common Bonds.” The answer is: “Warp Speed. Beam Me Up. Videoconferenced Arguments.” And the question, Alex: “What are ‘great ideas that don’t quite work yet’?” The concept is a good one. If the technology works, appellate counsel can save a good deal of their time and their clients’ money by participating in 2nd U.S. Circuit Court of Appeals oral arguments from remote sites — federal courthouses in such places as Albany, N.Y.; Buffalo, N.Y.; Burlington, Vt.; Hartford, Conn.; and New Haven, Conn. — rather than traveling to New York City, paying New York hotel rates, and arguing in person at Foley Square. And the technology isn’t awful. The 2nd Circuit has invested in the best closed circuit teleconferencing equipment available. Unlike earlier videoconferencing systems — where the video resembled night-vision cameras transmitting Neil Armstrong’s first steps on the moon, and the audio trailed behind the video like thunder after lightning — the newest generation of videoconferencing equipment is often OK. The video quality is generally decent, the sound is generally in sync with the speaker’s mouth. But there are, inevitably, glitches. I’ve seen the 2nd Circuit’s videoconferencing system in use twice — once last winter, when I was at Foley Square for an oral argument, and once a few weeks ago, when the CBA’s Federal Bar Section hosted a demonstration of the system at the federal courthouse in Hartford, Conn. In both instances, there were problems that would have been distracting at best and disastrous at worst. The disastrous problem occurred in a real-life argument in December. Both the appellant’s counsel and the appellee’s counsel were arguing from a remote location in Connecticut. Both checked in by video with the courtroom deputy about a half hour before the morning’s arguments began, and the system seemed fine then. But when the appellant’s counsel began his real argument, something went wrong with the audio. It squawked. It screeched. It crackled. I had an almost irresistible urge to cover my ears and run out of the room. But — as mesmerized as an onlooker at a train wreck — I stayed to see just how bad it could be. Several times during the argument (who would have thought five minutes could be so long?), the presiding judge asked the appellant’s counsel to repeat things that had been lost in an impossible sequence of scratches and whistles. When the appellee’s counsel took the podium, in the same remote location, the problem disappeared. His voice came through without distortion or distraction. Either the glitch was a temporary one, or the appellant’s counsel had caused the problem — perhaps by standing too close to the microphone, or by rustling the papers he held. Whatever the cause, the effect was striking: The appellant’s argument was lost in a painful assault on the ears of the judges, while the appellee’s argument rang out clearly. At the demonstration of the videoconferencing system in Hartford, Conn., a few weeks ago, the audio portion of the system worked flawlessly — but the video was problematic. A glare of light in the New York courtroom made it impossible for the arguing counsel to see the expressions on the faces of the courtroom deputies who were playing the role of judges. The most fundamental problem is not a product of technological glitches, however, but of technology itself. The videoconference takes away the immediacy of the oral argument. A televised argument, like a televised war, reduces humanity to a small screen, and in so doing, reduces the sense of its importance. Oral argument is difficult enough in person. To distill a case into a 5- or 10-minute snapshot, to understand and answer the questions and concerns of a panel of judges who may not agree with each other or with you — this is always a challenge in the best of circumstances. Preparation for an oral argument can take days of work — reviewing the record, briefs, cases, outlining and practicing an argument, attempting to anticipate questions. Why risk all that by relying on an imperfect and impersonal medium? And yet, the videoconferencing system makes compelling economic sense in some circumstances. If an appellant’s case is very weak, an appellee in Buffalo or Burlington might sensibly decide that even an imperfect videoconference would be adequate to protect his client’s interests. Government lawyers who must appear frequently before the court might well conclude that a trip to New York City is an unwarranted burden on the public purse. The videoconferencing system can also benefit lawyers. The 2nd Circuit requires bar applicants to observe two arguments before they are admitted. By checking the daily calendar on the court’s Web site, lawyers can learn when arguments are going to be videoconferenced in courthouses near them and can satisfy the “observation” requirement without making a trip to New York. Videoconferencing isn’t the right choice for a case where a lot is at stake. But despite the limitations of the current technology, the 2nd Circuit’s effort to offer economical alternatives for oral argument is laudable. And as technology continues to improve, videoconferenced oral arguments will become a plausible choice long before those of us in the provinces can get to New York at warp speed. Sheila A. Huddleston is an appellate lawyer at Shipman & Goodwin in Hartford, Conn.

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