Zoom and WebEx are replacing in-person arguments, helping courts maintain their argument schedules remotely

Twenty-two of the 50 state courts of last resort have adapted to the cancelation of traditional in-person arguments by conducting remote hearings, 20 of which were livestreamed, and another 11 plan to begin holding remote proceedings in the coming weeks, according to a report released today by Fix the Court.

Fifteen state supreme courts have livestreamed argument video since March 13, when President Trump declared a national emergency due to the coronavirus pandemic: those in Alaska, Arizona, California, Illinois, Kansas, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Tennessee, Texas, Vermont and West Virginia.

Five states’ top courts have livestreamed argument audio since then: Massachusetts, Missouri, Nebraska, Ohio and Virginia. Two top state courts – in Idaho and Utah – held remote arguments but didn’t livestream them. Eight more are expected to stream live video (Colorado, Florida, Georgia, Louisiana, Maryland, Oregon, Washington and Wisconsin) – and three, live or delayed audio (Connecticut, South Dakota and Wyoming) – as arguments that had been postponed are being added back to dockets nationwide.

Courts in the remaining 17 states have either canceled arguments or have yet to release plans on whether arguments will be held this spring.

Read our report, “Mostly Sunny with a Chance of Zoom,” here.

“With the country adapting to working remotely and using online platforms that facilitate face-to-face meetings, state supreme courts should be no different,” FTC executive director Gabe Roth said. “Luckily, the top judges in most states are donning their robes from a safe distance and are hearing arguments via Zoom, WebEx and other remote platforms, while allowing the public to watch or listen in live. The federal judiciary could learn a lot from them.”

After news broke earlier this week that the U.S. Supreme Court would conduct 10 hours of remote hearings next month, FTC surveyed state supreme courts to determine where they stood on broadcast access, both prior to the pandemic and during it. Generally, we used the courts’ websites but were helped by justices in Colorado and North Dakota and by court officials in Alabama, Iowa, Texas and Vermont when we wanted more information.

Before March 13
Prior to the pandemic, 33 state supreme courts typically livestreamed argument video, 10 typically livestreamed argument audio and the rest had more restrictive broadcast policies. That’s a stark contrast not only with the U.S. Supreme Court but also with federal appeals courts. Before the pandemic, only one typically livestreamed argument video (Ninth Circuit), one typically livestreamed argument audio (D.C. Circuit), three permitted periodic argument video recording (Second, Third and Seventh Circuit) and two permitted periodic argument audio livestreaming (Second and Fourth Circuits).

Since March 13
Even in the state courts that are conducting hearings remotely, judges are encouraging litigants, or are deciding sua sponte, to have cases submitted on the briefs – i.e., without argument. Even so, FTC believes there’s value in conducting some number of appellate court proceedings via public argument from both a continuity and a transparency perspective.

So we have been quite pleased to learn that supreme courts in Kansas, Michigan, North Dakota, Texas and West Virginia used Zoom to livestream hearings; the Tennessee and Minnesota Supreme Courts used Cisco WebEx; the Supreme Courts of California and New Jersey used BlueJeans; Vermont’s used Facebook Live; West Virginia’s streamed video via its YouTube channel; and the top courts in Alaska, Arizona, Illinois, New Mexico and New York used their existing video infrastructure, embedded in their websites, to stream argument video live. At the other end of the spectrum, the Iowa Supreme Court, for example, generally a leader in court transparency, is deciding all cases from mid-March until the end of its term (June 30) on the briefs.

Added Roth: “In terms of these outright cancelations, you may be asking yourself, can’t most of the cases currently before state supreme courts be decided on the briefs and without argument? Sure. But as we’ve learned over the past few years, the value of maintaining publicly identifiable social norms – oral arguments in this case – should not be underestimated, and since modern technology allows us to continue these practices at a safe distance, courts should lead and not demur.”

Relatedly, we’re pleased to note that since March 13 eight federal appeals courts have permitted livestreaming: the Second, Fourth, Seventh, Eighth, Ninth, Eleventh, D.C., and Federal Circuits. SCOTUS will make nine next month.

Ranking the courts
After gathering the data, we assigned the courts points based on the accessibility of their arguments, both before and during the pandemic. If before March 13, courts posted argument audio at the end-of-week or later, they received zero points. Same-day audio, end-of-week video or video with written consent was worth one point. Live audio, same-day video or rare live video was worth two points, and live video typically was worth three points.

For comparison’s sake, the U.S. Supreme Court would receive zero points in this category.

During the pandemic, if courts didn’t reschedule their arguments, or if there was not enough public information released on their plans, they received zero points. Scheduled and rescheduled arguments that took place or will take place remotely received one point. Scheduled and rescheduled arguments that took place or will take place remotely with live audio received two points. Scheduled and rescheduled arguments that took place or will take place remotely with live video received three points. An extra point was awarded to courts whose remote arguments were archived and posted online.

For comparison’s sake, the U.S. Supreme Court would receive two points in this category since they’re planning to livestream the audio of their May arguments. They will get a third point here once they post the audio files from those arguments on SupremeCourt.gov.

The following states’ top courts received the most points overall:

Seven points: Alaska, Arizona, California, Kansas, Michigan, Minnesota, New Jersey, Texas

Six points: Colorado, Florida, Georgia, Louisiana, Maryland, Massachusetts, Nebraska, New York, Ohio, Oregon, Tennessee, Washington, West Virginia, Wisconsin

A note on scheduling:
It’s important to remember that some state supreme courts hear arguments every few weeks, while others hear arguments only every few months (or almost never, like the Oklahoma Supreme Court).

In other words, it’s possible that, as in the Supreme Court example above, the point totals will change in the coming weeks as courts that have had a months-long cushion to decide how to handle arguments start publicizing those decisions. (We hope those decisions redound to livestreaming video plus archiving.)

More specifically, we anticipate that once top courts in Colorado, Florida, Georgia, Louisiana, Maryland, Oregon, Washington and Wisconsin start hearing cases remotely in the next few weeks, they’ll all earn a seventh point, as those courts typically archive their argument videos, and we hope more states follow their lead – and the leads of the other states that have livestreamed remote video arguments during the pandemic.