Arnold & Smith Lawyer Argues In State’s First-Ever Online Appellate Oral Argument

The State of North Carolina held its first-ever appellate oral argument via the internet on Thursday, April 30, 2020. Arnold & Smith attorney Paul A. Tharp argued on behalf of appellant John Wiles in Simmons v. Wiles, a case pending before the North Carolina Court of Appeals.

The Court of Appeals agreed to hear the case after Wiles appealed from a judgment rendered against him in late 2018 in Cabarrus County. Arnold & Smith did not represent Wiles in the trial in Cabarrus County.

Arnold & Smith has handled civil and criminal appeals for over a decade, arguing dozens of cases before the North Carolina Court of Appeals and Supreme Court. In addition, Arnold & Smith’s appellate team has presented appellate cases in the United States District Courts, the Fourth Circuit Court of Appeals, and the United States Supreme Court, and the firm has obtained favorable rulings for both civil and criminal appellants.

Preparing for Simmons v. Wiles was not very different from preparing for an in-person oral argument.

“It is like climbing a mountain,” said attorney Tharp. “You have a mountain of material—the appellate briefs for both sides, and all of the cases cited in the briefs—and you have to memorize all of it. Once you are standing on top of that mountain of knowledge, you are ready to formulate your argument.”

Tharp said arguing Simmons v. Wiles remotely saved his client time and expense—he did not have to travel from Charlotte to Raleigh to argue in person—but he missed the ritual and pomp that accompanies in-person oral argument at the Court of Appeals’ sumptuously decorated building, constructed on Morgan Street in downtown Raleigh in 1913, across from the old state capitol.

“It is always an honor to be invited to argue in the Court of Appeals,” Tharp said. “I missed the feeling of being where so many great lawyers and judges have argued about cases for over a half-century.”

The Court of Appeals suspended oral arguments after North Carolina’s governor issued a “stay-at-home” order on March 30, 2020. The governor issued the “stay-at-home” order to slow the spread of an infectious virus called COVID-19. The virus sickened and killed thousands of North Carolinians.

Tharp predicts that remote hearings will become common. “We have to be prepared to adapt, because conditions are always going to be changing,” he said. “If we do not adapt, we will be left behind.”

In presenting an argument via the internet, consideration should be given to the background, or the space around and behind a presenter. Many attorneys may choose a neutral, light-colored background, so that the image of the presenter is outlined clearly against the background.

Using a computer with a hard-wired internet connection (as opposed to using a cellular telephone, a tablet, a laptop, or wi-fi) may assist in presenting a crisp, clear image to viewers. Attorneys arguing cases remotely should consider using a computer with a high-quality web camera. In addition, in order to be heard clearly, attorneys should consider using a high-quality USB microphone or other like device.

“One thing I have noticed, during the lockdown,” Tharp said, “is presenters in remote sessions—whether these are continuing legal education courses, court arguments, or other online presentations—seem to carefully arrange items in the background such as books (and book titles), flags,” and other items that may convey “a message within a message.”

In the court argument setting, Tharp said, this can be distracting. “I liken it to an attorney’s wardrobe or antics. You always want to keep it tame. The last thing you want to do in court is draw attention away from a client’s case.” For that reason, attorneys should consider arguing in a neutral setting in which viewers cannot become distracted by background objects, whether the same have been placed intentionally or not.

Tharp sees the legal “online argument revolution” as a moment of opportunity for professionals throughout the legal industry.

“There are literally a thousand different ways that the process of presenting an argument remotely could be made better, clearer, smoother, and I would imagine that our future will involve vendors who will provide remote argument services for courts and attorneys alike.”

Remote hearings may also present opportunities for courts, lawyers, and litigants. “Remote hearings can cut out a lot of travel time, a lot of the process that goes along with getting a case heard,” Tharp said. “Presumably, that means we could have more hearings, hearings could be done more quickly, and litigants can have their day in court sooner.”

Tharp sees this as a good thing, especially as courts will have to work to clear a tremendous backlog of civil and criminal cases caused by virus-related shutdowns.