‘The wheels of justice must go on’: Indiana Supreme Court hears first remote arguments

Joining the trend of appellate courts nationwide, the Indiana Supreme Court on Thursday took the historic step of hearing oral arguments via videoconference in light of the novel coronavirus pandemic.

The Indiana justices used the popular Zoom program to connect with attorneys Richard Cook, Bryan Babb and Steve Langer, arguing as counsel for the parties and amicus in Clark v. Mattar, 20S-CT-109.

The high court was the first appellate court in Indiana to hear arguments remotely, though the 7th Circuit Court of Appeals in Chicago has already heard at least one Indiana case via teleconference.  The Indiana Court of Appeals is scheduled for its first remote argument May 21.

Unlike the United States Supreme Court, which has been hearing cases only via phone, the state justices and  lawyers could be seen on the screen. Their images were livestreamed on the court’s website in the same way in-person arguments are shown live.

At 9 a.m., court was gaveled in. Then, slowly, the images of the justices began to appear on the screen. The lawyers’ faces were also seen, as was a timer the attorneys could refer to while they presented their cases.

Indiana Chief Justice Loretta Rush took a moment to recognize the historic Zoom argument, encouraging the justices and lawyers to see the “beauty” in potential background distractions such as dogs or children, though those distractions ultimately did not materialize.

“The wheels of justice must go on,” she said.

The faces of the justices were displayed in order of rank and seniority: Rush and Justice Steven David on the top row, and justices Mark Massa, Geoffrey Slaughter and Christopher Goff from left to right in the middle row. To Rush’s left was the image of the timer.

The bottom row featured whichever lawyer was speaking at the moment. All three lawyers donned suits, while the justices wore their robes.

The jurists were seen against a background image of their courtroom in the Indiana Statehouse. Babb was in an office, while Langer appeared in front of a blue screen.

The underlying case dealt with the issue of jury selection. The plaintiff in the medical malpractice suit moved to strike for cause a potential juror who said he was unable and unwilling to determine non-economic damages — the same damages the plaintiff was seeking. The trial court, however, denied the motion, determining the potential juror just wanted to get out of jury duty.

The plaintiff then used a peremptory challenge to remove the juror, which meant that challenge could not be used to remove Juror 3, who was also objectionable. The Indiana Court of Appeals reversed and ordered a new trial,  and the justices granted transfer.

As the parties made their arguments for and against a new trial, the justices’ format for questions was different from normal. Rather than any justice jumping in with a question at any point, the court seemed to be following the lead of the U.S. Supreme Court, which is allowing justices during remote arguments to ask questions in order of seniority.

After each lawyer had spoken for a few minutes, Chief Justice Rush would begin the questioning. When she had finished with her questions, she would say “thank you,” signaling to Justice David, the longest-serving member of the court, that he could begin.

David followed suit, at one point interrupting Babb to left his colleagues know that his questions were done. David seemed particularly mindful of the available time, given that neither Slaughter nor Goff were able to ask questions of Cook during his initial presentation.

But the two most-junior justices were able to ask questions of Babb, with Rush deferring to them before asking any follow-ups. Slaughter and Goff began speaking at the same time, but Slaughter deferred.

Technologically, the arguments went off with only a few hiccups. Aside from minimal audio feedback, the line and images were clear.

Cook did experience a brief audio problem at the very beginning of the court session, and when he made his rebuttal his video would not work. But the justices could still hear him, so he proceeded on rebuttal with audio only.

At the end of the argument — which lasted 50 minutes, as opposed to the usual 40 — Rush thanked the attorneys for their advocacy and flexibility, which she said was “excellent under the circumstances.” The court was then gaveled into recess, and the case closed like any other.

The state justices are scheduled to hear a total of eight cases remotely in May, with arguments scheduled for Monday, May 21 and May 27.  Among those is a high-profile case involving the question of whether the state can keep secret the suppliers of its lethal-injection drugs.

That case, Indiana Department of Correction v. Toomey, will be heard at 11 a.m. May 27.

The full arguments in Clark are available here

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