The UCL Practitioner

Supreme Court takes up UCL/anti-SLAPP case: Serova v. Sony Music Entertainment

During this week's conference, the Supreme Court granted review in Serova v. Sony Music Entertainment, No. S260736.  The statement of the issue on review has not yet been added to the main docket page, but the case involves UCL and CLRA claims based on allegedly false statements about whether Michael Jackson actually performed all the songs on an album marketed as a "Michael Jackson" album.  The Court will address whether these claims can survive an anti-SLAPP attack.  See this prior blog post for more on the rather lengthy procedural history of the case, which includes a prior review petition and a "grant and transfer" order.  

The Court took this action after giving itself an extension of time, to May 18, to grant or deny review.  With assistance from attorney David Arbogast, I filed CAOC's letter in support of review on the first day of the Bay Area's shelter-in-place orders.  The petition for review, answer, and reply are also of interest. Congratulations to plaintiffs' counsel, Jeremy Bollinger and Dennis Moss, on this result, and many thanks for sharing copies of these briefs. 

Supreme Court's early May oral arguments to be conducted remotely (and more screen shots from the April session)

As anticipated, the Supreme Court's early May oral argument calendar, announced on Wednesday, will be conducted remotely.  (None of the cases scheduled for argument appear to involve UCL or class action issues.)

For those interested in remote oral argument procedures, The Recorder had two relevant articles earlier this week: "How the California Supreme Court Transitioned to Remote Oral Argument in Less Than a Month" and "Arguing Cross-Country: Litigators Talk Shop About Preparing for Phone, Video Appearances."  Both articles have been brought out from behind the paywall. 

The latter article includes a roundup of thoughts from litigators on preparing for remote oral arguments.  (For more on that subject, see these blog posts.)  Attorney Jay Lefkowitz prepared for his argument in Abbott Laboratories, the first case argued under the Supreme Court's new remote argument rules, by participating in two mock argument sessions, one by phone and one by video conference.   He observed that "[s]ometimes you can’t quite tell when you’re about to be interrupted by a question. The transitions in the argument are a little more challenging than if you’re in the room with someone." This would be worth practicing beforehand. 

On April 8, only one case was heard.  That session felt more focused to me than the proceedings on April 7, but that's probably because it was just a single case and fewer images appeared on the public video feed.  Here, we see the Supreme Court tableau, along with Justices Chin, Kruger and Groban participating remotely, and the two arguing attorneys (click images to enlarge):

I liked Samuel Harbourt's setup with an actual lectern.  Here, Justice Corrigan posed a question while the Chief Justice listened:

At the conclusion of the argument, the Chief Justice profusely thanked and led a round of applause for the Court's IT staff, whose efforts to prepare for the remote proceedings must have been Herculean.  She also thanked the Clerk, the Judicial Council, and the "mock attorneys" who helped the Court practice the remote setup before it went live.  According to The Recorder's article, the remote practice sessions took place on Friday, April 3.

The thanks and applause were well deserved all around.

Recent decision addresses UCL in anti-SLAPP context: Serova v. Sony Music Entertainment

Last week (on April 8, 2020), the Supreme Court granted itself an extension of time to grant or deny review in Serova v. Sony Music Entertainment, No. S260736.  Serova involves the interplay between the UCL (and the CLRA) and the anti-SLAPP statute (Code Civ. Proc. § 425.16).  The action alleges that Sony Music (and related entities) marketed and sold an album by falsely attributing all ten songs on the album to Michael Jackson, when in fact, a cover singer performed three of the songs.  The action seeks injunctive relief, restitution and damages on behalf of a proposed class of California purchasers of the album (or of any of the three mis-attributed songs). 

This case has been to the Supreme Court once before.  In 2018, the Court of Appeal (Second Appellate District, Division Two) reversed the trial court's order denying Sony's anti-SLAPP motion, holding that the attribution of the songs to Michael Jackson "did not simply promote sale of the album, but also stated a position on a disputed issue of public interest."  Serova v. Sony Music Entertainment, 26 Cal.App.5th 759, 764 (2018). 

The Supreme Court issued a "grant and hold" order in December 2018.  In September 2019, the Court transferred the case back to the Court of Appeal with directions to reconsider the matter in view of FilmOn.com Inc. v. Double Verify Inc., 7 Cal.5th 133 (2019).   Serova v. Sony Music Entertainment, No. S251822.

After the parties filed supplemental briefing, the Court of Appeal issued its new opinion on January 8, 2020.  Serova v. Sony Music Entertainment, 44 Cal.App.5th 103 (2020).  The new opinion essentially adopted the same analysis and came to the same conclusion as the earlier opinion. 

A second petition for review was filed in February 2020.  On the day after the Bay Area "shelter in place" orders went into effect, I submitted a letter in support of review on behalf of CAOC.  (This is the case I mentioned in my post on March 19, 2020).  The current deadline for the Supreme Court to grant or deny review is Monday, May 18, 2020.  As a practical matter, that means the Court will act by no later than its conference scheduled for Wednesday, May 13, 2020. 

Report on Los Angeles County Superior Court webinar on emergency procedural changes due to COVID-19

Last Friday, the Los Angeles County Superior Court held a webinar to update practitioners on the procedural changes instituted as a result of the pandemic and to answer questions about the changes.  Attorney Andrew J. Sokolowski of the Matern Law Group in Manhattan Beach joined the webinar and wrote up the following very helpful and interesting report.  Thank you, Andrew, for allowing me to share your report with the readers of this blog.  The webinar was not recorded, and there will be no link to review later, so Andrew's detailed notes are particularly timely.  Hyperlinks to the cited emergency orders and rules are included below.

The LASC webinar was about 90 minutes and Presiding Judge Brazile, Asst. Presiding Judge Taylor, and the Clerk Sherri Carter provided plenty of useful information.

My main takeaways: For civil cases, there will be no motion hearings, trials, MSCs, or new motion dates before 6/22/2020. Even after 6/22/2020, for trials the court will prioritize the backlog of criminal cases, unlawful detainer cases, and other cases entitled to preference.

More detailed information is below, organized by topic in the order they were presented:

Summary of LASC and Chief Justice Emergency Orders

All emergency orders by LASC are done through power granted by the Chief Justice (CJ).

The CJ can give those powers for up to 30 days, but they (and the orders resulting from them) can be renewed.

3/17/2020 LASC Order

1. Closed the court for 3 days (3/17-19) which are holidays for purposes of calculating time.
2. Defined “essential functions” that the court will provide beginning on 3/20 when it reopens.
   1. For civil: Civil Ex Partes Only
   2. Law and motion is not essential and will not be heard.
   3. Motions to compel, MSJs, demurrers, etc. are not essential and will not be heard.
   4. Court will be looking for a true emergency. The example Judge Brazile gave was moving to compel a depo of a witness who was likely to die in the near future. So pretty stringent.
3. This order expires on 4/16 but Judge Brazile submitted a request to the CJ to extend it, which he should know this afternoon or Monday (and will likely be granted). The new order requests the extension through 6/22, although the CJ may cut it down to 30 days (to 5/17).
4. Judge Brazile stressed that this is the time for civility and doing your best to work things out informally.

3/23/2020 LASC Order

1. Limited access to the courthouse.
2. Suspended all criminal and civil jury and non-jury trials until further notice.

3/30/2020 CJ Order

1. Continued all trials for 60 days (through 5/30).
2. Ordered courts to make use of technology “when possible” – this is DISCRETIONARY.
3. Judge Brazile said civil cases will have to wait to use such means for hearings and trials, for reasons explained below.
4. Judge Brazile also indicated the Court does not have the power to issue a blanket order authorizing e-service. He does not have the authority, at least not yet, although the CJ may eventually grant that authority or issue an emergency order to that effect.

4/6/2020 Judicial Council Emergency Rules

1. Suspends UD actions.
2. Authorizes remote judicial proceedings at the court’s discretion. Capacity for implementing this varies county by county, so it was not mandated.
3. Extends 5-year rule by 6 months.
4. Allows remote appearance of deponents.
5. Judge Brazile anticipates the CJ will issue additional Emergency Rules for Civil. The initial focus has been on dealing with criminal cases due to Constitutional concerns.

LASC Ramp-Up

1. The target date for LASC to start ramping back up to normal services is 6/22/2020.
2. The ramp-up will be gradual. The ramp-up plan is still being finalized. But will include things like holding a reduced calendar at the outset, and gradually expanding to a full calendar for each courtroom.
3. There will be a backlog of criminal trials, UD trials, and other trials entitled to statutory preference. This will delay getting civil trials set, given that jurors will need to go to those cases first.

Why is civil delayed? (Sherri Carter)

1. 90% of LASC employees are now working remotely, for dedicated call centers dealing with self-help, etc.
2. Courtrooms are closed, staff is not there. Many have shifted to different responsibilities.

Information from questions submitted by attendees.

1. Are trial dates suspended through 6/22/2020? YES. Judge Brazile will be asking the CJ to extend the order suspending jury trials through the 6/22/2020 target date for ramp-up. 
2. When will jury trials resume again? Estimating late August or September, given that criminal, UD, and preference cases have to be addressed first.
3. Judge Brazile is also soliciting help from the Bar for ideas on how to conduct trials while maintaining social distancing, which will likely still be needed beyond when the court resumes providing services.
4. What about trials set between 4/16 and 6/22? They will be continued and reset at a later date after 6/22. All dates, including discovery, MSJ, etc. will be based on the new trial date. Notice will be sent by mail.
5. Trial date after 6/22? These will also likely be vacated and reset – but IC judges will have the ability to manage these trial dates more independently. However, a trial set e.g., for 6/29 is unlikely to go forward given criminal, UD, and preference case backlogs.
6. Can attorneys stipulate to a new trial date after 6/22? Yes, but subject to the Court’s approval. Pick a date sufficiently after the ramp-up starts.
7. Will there be remote law and motion after 6/22? For some cases yes, but court-provided remote tech will first be dedicated to criminal cases. There is still CourtCall, but this is not provided by the Court (i.e., the parties must pay for it).
8. Do the orders alter the period to exercise a 170.6? No.
9. Hearing between 3/17 and 6/22? These will be continued. At present, Judge Brazile cannot estimate when they will be heard.
10. Can I get a hearing date for new motions? The Court will start determining this over the next several weeks, but there will be no hearing dates for civil before 6/22/2020. No new reservation dates are being issued, so effectively new motions cannot be filed at Mosk.
11. Why can’t civil motions be heard? Complex is closed and Mosk is closed. Even with CourtCall or Zoom, there is no one present to make a record entry, even remote hearings would require staff to be present in court, civil staff is reduced 90% and largely reassigned to criminal and call centers, no staff to make calendar entries and send out notice.
12. Settlement conferences? Are not being conducted and will not be until the Court reopens.
13. Is formal Court attire required for remote hearings? No, business casual is fine.
14. Will there be remote trials after the Court reopens? For bench trials that would work. For jury trials, the Court needs comments from the Bar on how the logistics would work.
15. What about statutory deadlines for law and motion (e.g., motion to compel)? All the dates will be continued, and the next emergency order from the Court will include language on tolling. Regardless, there will be good cause for filing them late.

General Comments

1. My takeaway is that civil is doing less in order to provide call center services, and redeploy resources to criminal.
2. Also, judges are being cross-trained in other areas. 1/3 of bench officers are over 65 and vulnerable. The Court wants to protect them, and also plan for the unfortunate circumstance that some judges are incapacitated by COVID-19.
3. Judge Brazile stated multiple times: Now is the time for civility.
4. The Court will need the support of the Bar in the Legislature when budget time comes. He foresees circumstances similar to the budget challenges during the great recession. 

Provisional class certification in the Ninth Circuit: Al Otro Lado v. Wolf

In Al Otro Lado v. Wolf, ___ F.3d ___ (9th Cir. Mar. 5, 2020), the district court granted provisional class certification in order to issue a preliminary injunction.  The Ninth Circuit had this to say about that procedure:

The government does not challenge the district court's provisional certification of the class for purposes of the preliminary injunction. We have approved provisional class certification for purposes of preliminary injunction proceedings. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041-43 (9th Cir. 2012) (affirming provisional class certification for purposes of a preliminary injunction).

Slip op. at 15 n. 4.  This blog's coverage of Meyer is at this link. 

Oral argument report: Abbott Laboratories v. Superior Court

Yesterday, the Supreme Court heard oral argument in Abbott Laboratories v. Superior Court (Rackauckas), no. S249895.  Abbott involves the territorial reach of the UCL provisions authorizing district attorneys, as well as certain county counsel and city attorneys, to bring UCL actions on behalf of the general public. This was the Court's first foray into remote oral argument by video conference, and it was a success (scroll down for screen shots and my thoughts on the procedure).  On the merits, I think the DA's office will prevail. 

The defendants, supported by the Attorney General's office as amicus curiae, argued that the Orange County District Attorney is authorized to obtain a statewide public injunction, but only the Attorney General may seek statewide restitution.  The oral argument, therefore, was focused mainly on statutory interpretation and legislative intent. 

Justice Liu broke in first, querying whether a "centralized enforcement model" or a "decentralized" one "is what the legislature contemplated here."  He pointed out that the California Constitution gives the AG's office "direct supervisory authority" over the DAs, but not over the county counsel and city attorneys who are also empowered to bring UCL actions.  He asked whether "tension" existed between the UCL and this constitutional provision. 

Justices Liu, Cuéllar, and Kruger all had questions about how the AG's office is notified of new UCL public prosecutor actions, whether notice should be required, and what the AG typically does when notified of new actions. 

The Chief Justice asked about the purpose of the UCL, which is "to protect consumers."  She pointed out that many businesses' operations are not limited to a single county, and the "understanding" that the AG can't always take action in every county.  "Why shouldn't we construe [the UCL] to give statewide power to the DAs?"  She said that doing so "ensures greater protections for consumers, not less," and that adding administrative procedures at the front end, such as formal notice to the AG, "provides less protection." 

It was undisputed, according to Justice Liu, that the UCL authorized the DAs to pursue civil litigation, and to seek statewide injunctive relief.  So the only question was the monetary relief.  He said that the UCL "is not silent at all" on the scope of the DAs' authority.  Section 17203 says that "any person" may bring a UCL action and, under section 17206, seek all forms of enumerated relief "for each violation." 

The Chief Justice asked point blank:  "If DAs can bring the action and have authority to get an injunction, why don't they have the power to get restitution?"  Defendants' appellate counsel (attorney Jay Lefkowitz) admitted the statute was "silent" on the point, but argued it was "better" not to read that authority "into a silent statute." 

On balance, based on the thrust of the justices' questions, and the fact that they posed tougher questions to defendants' counsel, I think the Court will hold that the DAs' offices may seek statewide restitution.  We will find out in approximately ninety days (by Monday, July 6). 

The live video stream was interesting and instructive for future remote arguments.  As it turned out, three justices, not two, participated by videoconference.  In this screen shot (click on each image to enlarge), you can see Justice Corrigan, the Chief Justice, Justice Liu, and Justice Cuéllar on the bench, with Justice Kruger on a very large monitor newly installed in the courtroom: 

The screen shot below depicts the public video feed as it first appeared, with images of eight of the lawyers slated to argue the different cases on the morning calendar, in no apparent order.  In the top middle image (click to enlarge), you can just make out Justice Corrigan, the Chief, and Justices Liu and Cuéllar seated well apart from each other across the bench:

Once the Abbott case was called, the image shifted to this view, with Justice Kruger and pro tem Justice Fujisaki in the top left and right screens: 

Attorneys Kelly Ernby, Yvonne Mere and Jay Lefkowitz argued Abbott.  Attorney Blanca Young was apparently slated to argue a later case, yet her image remained onscreen throughout the Abbott argument.  We now know that arguing attorneys' video images may be visible to the public at any time.  In particular, while the argument proceeds in your case, your image will be displayed, so your non-verbal reactions to the proceedings should be measured. It is unclear whether the justices in the courtroom saw the same composite view, or if the arguing attorney's image was enlarged while he or she was speaking.  The image was not enlarged in the public live-stream. 

Multiple cameras were installed in the courtroom, allowing the video feed to shift to the justices when they had questions, but only for the four seated in the courtroom.  Here, Justice Liu asked a question while Justice Cuéllar looked on: 

And here, the Chief Justice emphasized a point.  She was careful to ask, at the end of each argument segment, if the justices participating remotely had any questions.  She also helped the advocates keep track of their time allotments. 

When the Abbott argument concluded and the next case was called, the screen shifted to include Justices Chin and Groban, both participating remotely, along with Justice Kruger and three arguing attorneys:

If many more remote arguments are conducted, the procedures and camera-work will probably evolve.  The next oral argument dates on the Court's calendar are May 4-8, May 18-22, and June 1-5.  The early May calendar should be posted next week.  I would imagine that the early May arguments, at the very least, will be done remotely.  After a break in July and August, oral arguments will resume the week of September 1.  At the Lectern has a post on the argument with more screenshots.  The Recorder's take on the argument is here.

Supreme Court to hear UCL public prosecutor case today: Abbott Laboratories v. Superior Court

Today at 9:00 a.m., the California Supreme Court will hear oral argument in Abbott Laboratories v. Superior Court (Rackauckas), no. S249895, which presents this UCL-related question (quoted from the Court's online docket): 

Does a district attorney have the authority to recover restitution and civil penalties under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) for violations occurring outside his or her territorial jurisdiction?

The Court of Appeal said no, on a 2-1 vote (see this blog post).  The parties' Supreme Court briefs are available here.

This is the first week of oral arguments since the full scope of the COVID-19 pandemic became clear.  The Supreme Court has issued two standing orders on argument procedure (see this order dated March 16, 2020 and this order dated March 27, 2020).  All arguments will take place in San Francisco until further notice.  Arguing counsel will participate remotely, as will at least two of the seven justices.  No more than 15 members of the press will be allowed in the courtroom at any one time.  They will be admitted on a first come, first served basis.  The public may observe by live video stream.

Per the latest updated argument calendar, Abbott Laboratories will be the first case argued under the new rules. The logistics may be complicated by the fact that the real party in interest requested, and was granted, leave to share 10 minutes of argument time with counsel for several amici curiae.   Justice Chin and Justice Fujisaki (of the First Appellate District, Division Three, assigned pro tempore in place of Justice Groban, who is recused) are the two justices who will participate remotely, according to the webcast information.  The live-stream video can be accessed on this page, at a link to be posted shortly before the argument begins.   

Ninth Circuit class action discovery opinion: In re Williams-Sonoma, Inc.

In In re Williams-Sonoma, Inc., 947 F.3d 535 (9th Cir. Jan. 13, 2020), the named plaintiff, a Kentucky resident, sued Williams-Sonoma under California law for false advertising.  After the district court determined that Kentucky law applied to his claims, he propounded discovery seeking a list of all California consumers who had purchased the product in question during the relevant time period.  The district court ordered Williams-Sonoma to respond.  Id. at 538-39. 

On a 2-1 vote, the Ninth Circuit issued a writ of mandamus compelling the district court to vacate that order, holding that it represented a "clear error" of law.  Id. at 539-40.  The discovery, "seeking ... the name of a class member (here an unknown person, who could sue Williams-Sonoma)," was not "relevant to the subject matter involved in the action" within the meaning of Federal Rule of Civil Procedure 26(c)(1).  Id. at 539 (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-53 (1978)).

In dissent, Judge Paez explained that the majority had misconstrued Oppenheimer, which "did not hold" that plaintiffs may never "seek the identities and contact information of absent class members ... before the class is certified."   Id. at 541.  Moreover, even if Rule 26 did not permit the discovery, Rule 23 was broad enough to authorize the district court's order.  Id.  The dissenting opinion concludes:

The district court thus acted well within its authority by facilitating class counsel’s attempts to communicate with absent class members and to notify them of important developments in the lawsuit. Because the district court’s order was a “matter ... committed to discretion, it cannot be said that [Williams-Sonoma’s] right to a particular result is clear and indisputable.” See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam) (quotation marks omitted). I would thus deny the petition for a writ of mandamus. I respectfully dissent.

Id. at 543.

Three-way split on "unfair" conduct: Weimer v. Nationstar Mortgage, LLC

In an unpublished section of Weimer v. Nationstar Mortgage, LLC, ___ Cal.App.5th ___ (Apr. 2, 2020), the Court of Appeal (Third Appellate District) discussed the three-way split in authority on the definition of "unfair" conduct under the UCL.  The three tests developed in the case law so far are the "balancing" test, the "tethering" test, and the "Section 5" test": 

Following Cal-Tech Communications, a split in authority has developed concerning the standard for consumer claims under the “unfair” prong of the unfair competition law.  (Compare Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 718-719 [adopting the pre-Cal-Tech Communications balancing test] with Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 854 [adopting the “tether[ing]” test]; see also Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394,1403 [adopting the test for unfairness set forth in 15 U.S.C. § 45(n)] [aka the "Section 5" test].)

Slip op. at 49 (emphasis added).  The panel decided to follow the "balancing" test because another panel of the same District had adopted that test some years ago.  Id. (citing Progressive West Ins. Co. v. Superior Court, 135 Cal.App.4th 263, 285-86 (1999)).  I have seen other appellate courts approach the three-way split in the same way.  Evidently, the parties offered no briefing on which test should apply.  See id.  Possibly, each side argued it should win no matter which test governed, which is a legitimate strategy approach in many cases.  That said, the Supreme Court is unlikely to resolve this split until a case arises in which the outcome depends on which test applies.   

Under the "balancing" test, the Court held in the unpublished section, the plaintiff had adequately alleged that defendants' handling of his loan modification was "unfair" within the meaning of the UCL.  The alleged conduct was also "fraudulent": 

The complaint alleges defendants subjected plaintiff to a fraudulent application process, stringing him along with false assurances that a loan modification would be forthcoming or that he was eligible for a HAMP modification, and then claiming, falsely and repeatedly, that plaintiff failed to supply requested documents.  The complaint further alleges that defendants intentionally delayed the loan modification process by demanding that plaintiff submit the same documents over and over again, all in an attempt to increase arrears, penalties, and fees.  These allegations adequately support a cause of action under the “fraudulent” and “unfair” prongs of the unfair competition law.  (See Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 310 [allegation that lender “pretended to engage in loan modification efforts while actually intending to foreclose” stated unfair competition law cause of action under “fraudulent” and “unfair” prongs]; Majd [v. Bank of America, N.A.], 243 Cal.App.4th [1293,] 1304 [(2015)] [borrower sufficiently alleged violation of the unfair competition law based, in part, on lender’s false assertion that he failed to provide required documentation].)

Slip op. at 49-50.  (This blog's short 2014 post on Rufini is here.)

Two Ninth Circuit settlement approval opinions: Campbell v. Facebook, Inc. and Roes v. SFBSC Mgt., Inc.

Last month, in Campbell v. Facebook, Inc., ___ F.3d ___ (9th Cir. Mar. 3, 2020), the Ninth Circuit affirmed final approval of a classwide settlement of certain privacy litigation against Facebook.  The opinion includes a lengthy discussion of the named plaintiffs' standing under Frank v. Gaos, 139 S. Ct. 1041 (2019) and Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).  Slip op. at 13-23.  The opinion goes on to hold that the settlement consideration was not "valueless" to the class, nor did the settlement present the Bluetooth "'subtle' warning signs" of collusion.  Id. at 27-39 (citing In re Bluetooth Headset Products Liab. Litig., 654 F.3d 935 (9th Cir. 2011)).

In December, the Ninth Circuit reversed final approval of a class action settlement in Roes v. SFBSC Management, Inc., 944 F.3d 1035 (9th Cir. 2019).  In Roes, the court held that the settlement did bear signs of collusion under Bluetooth and that the district court should have scrutinized the settlement terms with greater vigor.  Slip op. at 23-49. 

Justice Bedsworth on telephonic appellate oral arguments

In his latest column for The Recorder, Justice Bedsworth tells the story of the last time he went for weeks without a haircut (it sounds pretty serious, actually, a cerebral aneurysm in 1988 requiring cranial surgery).  He also has some news on how telephonic appellate arguments have been going so far in the Fourth Appellate District, Division Three: 

We’re doing telephonic oral arguments now. I’ve learned to limit my questions; there’s a short time delay in the telephonic connection and a question often interrupts an attorney who’s already started another thought. It can throw off their timing and make it hard for them to stay on topic.

And no unnecessary comments. It’s been my practice to make occasional efforts to say things that will relax the attorneys before me. Relaxed people perform better than nervous ones. But that doesn’t work with telephonic oral arguments. Turns out statements from someone whose smile cannot be seen are ineffective as tension dampers.

Stay safe, Justice Bedsworth, and thanks for the window in.  (For a roundup of advice on remote appellate arguments, see this blog post.)