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In-person appellate arguments continue move back to normal 

It looks like lawyers are going to have to leave their shorts and sweatpants in their closets again.

Some courtrooms, particularly in the state’s appellate courts, have been virtually vacant since COVID-19 forced the legal system to modify its processes. But judges and justices will soon again be face-to-face, rather than screen-to-screen, with many of the attorneys arguing before them.

North Carolina Supreme Court Chief Justice Paul Newby rescinded all of the judicial branch’s remaining COVID-19-related emergency directives on June 21, three days after Gov. Roy Cooper signed a bill that codified into law the only remaining emergency directives that had remained in place, which are all intended to help clear the backlog of cases caused by the pandemic.

Newby, noting the “grave impact” of further delaying justice, has encouraged superior court judges to resume jury trials, and the judicial branch to do its best to begin fully reopening the courts. The latest order also clears the way for the state’s appeals court to resume normal operations.

The North Carolina Administrative Office of the Courts revealed in a July 27 news release that it plans to do just that, beginning with three in-person arguments on Aug. 10 and Aug. 11, although the parties may still request a WebEx hearing after consulting opposing counsel.

While no formal announcement has been made regarding in-person oral arguments at the Supreme Court, NCAOC information and communications specialist Simon Gonzalez confirmed to Lawyers Weekly that it has also been authorized to conduct in-person hearings.

“In-person oral arguments for the Supreme Court of North Carolina resume the week of August 30. The Calendar of Arguments posted to the Supreme Court page on states that court begins at 9:30 a.m. in the courtroom,” Gonzalez wrote in an email.

The state’s appeals court held its first WebEx hearing on April 30, 2020, but continued to conduct in-person arguments while complying with temporary courtroom guidelines it issued in March to “safely ease back into having oral arguments in our courtroom,” Chief Judge Donna Stroud wrote in a release. Those guidelines included acrylic glass screens, limited attendance, social distancing in the courtroom, and tests for COVID-19.

In the July 27 statement, Stroud said that the reopening will be a cautious one.

“And although we are pleased to welcome attorneys, parties to cases, and the public back to our Court, we will also continue to use some innovations adopted due to the pandemic to the extent those innovations improve public access to the Court and improve the Court’s operations,” Stroud wrote.

The Supreme Court has operated fully remotely, so its Aug. 30 hearings will be the first since the pandemic began. According to the Judicial Branch’s website, the high court will hold five hearings Aug. 30 and Aug. 31, from 9:30 a.m. to 3 p.m. On Sept. 1, three hearings are scheduled, from 9:30 a.m. to 12 p.m.

All arguments will be recorded and live streamed, available for viewing on the courts’ respective YouTube pages.

For many, reintegration is welcome. Incorporating podiums and courtroom backdrops into videoconferencing offers a touch of authenticity, but can’t replicate the real thing.

John Wester of Robinson Bradshaw in Charlotte argued before the Supreme Court in 2020. He found several similarities in the hearings—considerable preparation, consummate professionalism, and few interruptions. There were memorable moments, he said, recalling the rumored spotting of a lawyer wearing Bermuda shorts below a shirt, tie, and coat, but a recent trip to the U.S. Courthouse Annex in Charlotte stoked his longing for traditionalism.

“A lot of us have severely missed going into the courts … I have missed seeing the outstanding administrative staffs … I really value those relationships,” Wester said. “I miss the look and feel of the furniture, the portraits on the walls, and the overall ambience.”

Wester said that when the justices or judges are in front of an attorney in person, reading reactions and facial expressions is easier to do.

“Sometimes you can get a clue [of what to do next],” he said.

Poyner Spruill partner and North Carolina State Bar appellate practice specialist Drew Erteschik also praised court staff for making the transition as seamless as possible, but also agreed that certain components aren’t as discernible over webcam.

“Pacing and rhythm and visual cues are there, but they just don’t translate as well,” Erteschik said. “Getting back to in-person arguments … probably improves the quality of justice somewhat.”

Erteschik said he also misses the personal interaction.

“Normally I’d be in a courtroom and I’d come up and talk with [lawyers], ask them ‘How’s your family?’ and shake hands … we’d walk out together and maybe go grab coffee,” Erteschik said. “Now, I’ve just been calling my friends on the other side … it’ll be nice to see people again.”

Follow Heath Hamacher on Twitter @NCLWHamacher

Editor’s note: This story has been updated to include information from the NCAOC’s July 27 announcement.

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