Bar News Masthead

When the coronavirus (COVID-19) pandemic struck in early March, court proceedings were seriously upended. Following social distance guidelines, in-person courthouse access was limited to emergency filings and hearings only. Case processing slowed throughout the system. The courts quickly realized they would have to adjust to ensure continued access to justice and the New Hampshire Judicial Branch ramped up their use of alternative technologies using e-filing and telephonic and video hearings as a means to keep the courts open and operating.

Oral arguments before the Supreme Court were a particular challenge, and fourteen cases scheduled to take place in late March and early April had been postponed. At issue were the two choices the Court faced: either to delay oral arguments until public-health conditions allow for a resumption of in-person proceedings; or second, dispense with oral arguments and rely entirely on the parties’ written briefs. Option one would definitely create a backlog well into the fall.  Option two would deprive the justices and the advocates of the benefits that come from the question-and-answer aspects of oral arguments.

The court looked for other solutions. Building on experience livestreaming in-person oral arguments from the courthouse, the Supreme Court contemplated a giant leap forward:  hearing oral arguments remotely, with each judge and the advocates in different socially distant locations brought together virtually via Cisco’s Webex.

“We were concerned at first if the technology could effectively simulate an in-person oral argument for the justices and the advocates,” said NHSCT Clerk Tim Gudas, “but the justices all felt it was worth a try, to make this concession to hearing the arguments remotely, when it would ensure that all were able to participate fully but no one had to worry about exposure to the corona virus.”

Mindful of the challenges, the Supreme Court decided to “go remote” for the first time in late April, with the goal of hearing all of the postponed cases by mid-June and keeping on schedule into the fall.

“Oral argument is an important and helpful part of the appellate process, for both the advocates and the justices,” noted Senior Associate Justice Gary E. Hicks. “By using videoconferencing technology in coordination with livestreaming, we aim to maintain the benefits of oral argument, while minimizing delay, and continuing to offer New Hampshire citizens a real-time glimpse into the workings of the court system.”

The first remotely held oral arguments before the Supreme Court took place on Wednesday, April 29 with the case, State of New Hampshire v. Murphy. The hearing went live shortly after 10 a.m. with Christopher Johnson representing the appellant and Elizabeth Woodcock representing the State. Despite the court’s initial concerns about the videoconferencing process, the attorneys were able to field questions from the four justices throughout their arguments. Justice Hicks thanked Woodcock and Johnson for going first with the remote oral arguments. “We appreciate your participation in this exploratory effort and I encourage you to reach out with any suggestions for improvement now that you have.”

Members of the media and interested citizens were also able to watch and listen to a real-time livestream of the oral arguments on the Supreme Court webcast same as before with the added dimension of the justices being in separate locations.  For the justices, there were other unexpected advantages.

“One of the benefits of hearing arguments remotely is that I can pull up and reference cases we’re discussing,” noted Associate Justice James P. Bassett, as he reached for a volume of New Hampshire Reports while seated in his chambers.

“We’re committed to keeping oral arguments open and accessible to the public and the media,” said Justice Hicks. “This process, while more complex, allows us to do that in real-time with justices and staff located remotely. Along with everything else the COVID-19 pandemic experience has taught us about adjusting our procedures, remote videoconferencing will likely become yet another tool we’ll all be taking for granted in the years ahead. While I’m hoping we’ll all be back to in-person oral arguments soon, I’m just glad it’s available, and working, right now.”