Analysis

Attys Prep For Phone Hearings As Fed. Circ. Braces For Virus

By Ryan Davis
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Law360 (March 12, 2020, 9:45 PM EDT) -- The Federal Circuit on Thursday canceled numerous oral arguments slated for next month and ordered others to be conducted over the phone due to the COVID-19 virus outbreak, a move attorneys said was understandable but will make their jobs more difficult.

The appeals court announced that for now, in-person arguments will proceed as scheduled in cases where counsel for both parties are located in the Washington, D.C., area. However, in order to minimize the risk of spreading disease, the court removed some cases from the April argument calendar and will instead decide them on the briefs.

In the remaining cases where attorneys are not based in Washington, arguments will be conducted by phone at the previously scheduled time, and the court will continue its practice of posting recordings of all arguments online the same day. By the close of business Thursday, the court had issued orders addressing the new plan in 30 patent cases, scheduling telephone arguments in 17 of them and canceling arguments completely in 13 others.

For attorneys who are used to reading the judges' facial expressions and body language when presenting arguments, switching from an in-person hearing to a phone call will be a challenging adjustment, Yar Chaikovsky of Paul Hastings LLP said.

"The reality is, we need to get accustomed to it," he said. "This may not be something we like or our clients like, but the circumstances call for it and we have to get used to it."

Standing in front of the judges and tailoring a presentation based on how they respond is an important part of appellate advocacy, and "that's what we're going to lose" with telephone arguments, Debbie McComas of Haynes and Boone LLP said. She said she was "a little dubious that it will be successful."

"Oral arguments are a conversation with the court, where we're trying to get at if there's something that was missed in the briefs," she said. "Doing it over the phone is better than not having any opportunity at all, but it will definitely be a challenge."

She noted that in person, it's possible to see when one of the judges is about to ask a question, but on the phone, they may have to break in and interrupt the lawyers, which could make arguments more cumbersome.

Not having the attorneys and judges in the same room "will affect to some extent how cases are decided," Dan Bagatell of Perkins Coie LLP said.

"There's going to be a different dynamic when you don't have those oral cues that you get when you're there in person," he said.

Attorneys said they couldn't remember a previous instance of the Federal Circuit holding arguments over the phone. Telephone hearings are commonplace in many district court cases, but they are often used for status conferences and other lower-level matters, rather than for dispositive motions, and they only involve one judge.

An appellate argument by phone, before a panel of three judges, is therefore not something most patent attorneys have experience with.

"A lot of judges in district courts have hearings on procedural motions over the phone," Aziz Burgy of Axinn Veltrop & Harkrider LLP said. "So I don't see why attorneys couldn't be as effective arguing over the phone."

However, McComas noted that the stakes are usually considerably lower in district court telephone conferences, while entire cases will be riding on Federal Circuit arguments conducted over the phone.

"That 15 minutes is all you get," she said. "It would be almost like having a trial or a summary judgment hearing on the phone."

Telephone arguments mean that "for Federal Circuit appellate advocacy, we're in uncharted waters," said Rob Courtney of Fish & Richardson PC, so attorneys and the court may need to recalibrate and proceed more slowly than they would in person.

"We're losing the element of nonverbal communication on both sides," he said. "We should let things breathe a little, so everyone is on the same page."

Bagatell said he's gotten a distinct sense of how arguments can play out differently depending on whether one is there in person or only hears the audio. He said he frequently listens to the audio recordings of Federal Circuit arguments that are posted online soon after they conclude and discusses them with colleagues who were in the courtroom. He has found that they sometimes have completely different impressions.

"I may think one side won easily, and they'll tell me, 'If you were there in person, you wouldn't say that: You'd be able to see that the judge wasn't buying what the lawyer was selling,'" he said. "Listening to the recordings, you don't always get the nuances you see in person."

The conventional wisdom for attorneys is that a case cannot be won during oral argument, since the judges largely base their decisions on the briefs, but a case can be lost there with a major error, Chaikovsky said.

During argument, "we might be shaping the opinion, but we're not often changing the opinion," he said, so doing it over the phone "will reinforce the time-worn adage to always make sure your briefs are really good, but you should be doing that anyway."

It may be possible to adjust to the new normal of arguing by phone, but attorneys and litigants whose arguments were called off completely under the new plan have been left with unanswered questions.

For years, the Federal Circuit's standard practice has been to hold oral arguments in just about any case where a party requests it, which is unusual among the circuit courts. For that reason, attorneys said they were somewhat surprised by the decision to call off arguments in so many cases.

"There have been times when the court has been closed for a day or two because of weather, but I can't remember anything like this, where a large swath of arguments was canceled," Bagatell said.

It may be natural to assume the cases whose arguments were canceled are so clear-cut the court decided it isn't necessary to hear from the parties, and will end up summarily affirming the judgment below with a one-line order. However, attorneys cautioned against reading too much into the court's decisions at this point.

For one thing, the court's standard practice has long been that when a case is submitted on the briefs, it is not summarily affirmed, so that all parties get the benefit of hearing the judges' views, either at argument or in a full decision.

"Historically, those cases have gotten written opinions," Courtney said. "Time will tell if that happens here."

Elsewhere in the patent world, the U.S. Patent and Trademark Office announced that it has canceled or postponed numerous upcoming workshops and other events, but as of Thursday evening it had not yet announced any changes to scheduled hearings before the Patent Trial and Appeal Board.

Also on Thursday, Judge Rodney Gilstrap of the Eastern District of Texas, who last week ordered attorneys to notify opposing counsel if an event at the court could expose someone to COVID-19, cited the outbreak in moving a patent trial in a case between Samsung and Image Processing Technologies from April 13 to June 1, but said that was a "firm trial setting." He also said depositions could be taken remotely so no one needs to travel to Samsung's home base of South Korea.

In another case Thursday, Judge Gilstrap called off a scheduling conference set for March 23 in a patent suit by Uniloc against Chinese conglomerate Tencent until further notice. The parties jointly requested the delay last week, noting that Tencent's employees in China have not been permitted to come into work due to the outbreak and can't participate in the activities related to the suit.

Attorneys said that given the widespread public health concerns over the coronavirus, they appreciate the Federal Circuit taking steps to minimize the risk of transmitting the disease.

"I seriously do appreciate the court doing this," Bagatell said. "I know they don't want to be responsible for anyone being affected by this unnecessarily."

Nevertheless, being forced by circumstances beyond anyone's control to do something less than the most thorough job possible is against the natural instincts of attorneys.

"I understand and respect the caution the court is using," McComas said. "But I personally feel that my job is to do the best I can to represent my clients, and if that means flying to D.C., I'm willing to take that risk."

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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