By Dani Kass

Law360 (June 9, 2020, 6:23 PM EDT) -- The Federal Circuit is wrapping up its third month of remote oral arguments this week, a technological shift the chief deputy clerk said presented challenges he "never could have imagined" in his judiciary career, and which is further complicated by having a skeleton crew of staff on the ground.

Law360 spoke with Clerk and Circuit Executive Peter Marksteiner and Chief Deputy Clerk Jarrett Perlow on Friday about how they got the court ready for the change, whether there's discussion to keep remote arguments as an option after the COVID-19 pandemic subsides, and why they spent nearly an entire day searching through bell sounds.

This interview has been edited for length and clarity.

The Federal Circuit went from having never held oral arguments remotely to doing them regularly in a quick time frame. What was that preparation like?

Marksteiner: It's a lot like watching a duck: that which is visible to our jurists and the bar ideally looks calm. But there was a steep learning curve below the water line that some of our folks in the courthouse did a herculean job mastering.

Perlow: Our testing was entirely in-house, and then we rolled it out to the bar during orientation sessions ahead of arguments.

Marksteiner: We had designated members of our staff to essentially role-play: some folks would [play] the roles [of] judges, others [of] litigants. In the course of these dry runs, we identified some things that could work better.

We tried to create some opening scripted dialogue that gives litigants the opportunity to get familiar with the pace of how this proceeding goes. There's a pause on the audio bridge when a recording starts, and there's another pause when it stops, so we discovered that instituting certain scripted passages in how the hearings are conducted really just gives an opportunity to anyone for whom this is the first time in this medium to get their sea legs and understand what the flow is going to feel like.

Perlow: In three weeks, we went from 0 to 100%. This was all that several of us in the office were working on for three weeks, [including figuring out] how we communicate this to a bar that hadn't done this before and to judges who weren't used to conducting arguments [remotely].

We have one of the highest percentages of merits cases heard at argument [about 80%]. We have a proud tradition of cases getting argument here, and one of the charges we got from the bench was "we want to preserve this tradition."

Were judges usually coming into the court, or did they stay home?

Marksteiner: Most of the time, the judges are calling in from outside the courthouse. It's my understanding that maybe two or three of our judges have participated from chambers.

What has the setup looked like inside the court?

Perlow: The way we have been doing it is we are actually in the courtroom. We have one staff person in there as the courtroom deputy, and they operate everything from a control panel from the computer and patch everyone in. We continued to do the cry of court with the gavel. It makes it feel like we're there, even though we're all over the place.

What were some of the biggest problems you were anticipating? Did they come to fruition?

Marksteiner: There weren't really any profound concerns [except] getting the pacing of how an oral argument goes when you're not looking at one another, and getting the participants in the mindset to avoid speaking over one another.

Perlow: The biggest concern is of course a call dropping, but we have a protocol in place. I think we've had counsel drop maybe five times. It may be a little more than that, but I know it's still in single digits, and that's in three months of doing this.

After each court session, all the staff who were involved go through what worked, what didn't work, and we come up with an action plan of things that we need to adjust for the following month. It can be something like the wording when we give an instruction.

What was one of the bigger issues you had to fix?

Perlow: If you heard during the first month and second month, the tone that we played for the timer — we changed that tone. [At first], we went with a handbell, [but] it was too dependent on the operator and where it was placed, and it created a tinny vibration reverb. We weren't terribly happy with it. We heard anecdotally that people weren't terribly happy with it.

We spent a good portion of a day testing digitally created sounds, like 'no, I don't like pitch on this,' 'drop this octave,' 'let's try this note,' and we spent probably more time than I'd like to acknowledge trying to find a tone that is pleasing to the ear and everyone can hear. No one commented about the tone after we used the new tone.

I've worked in the judiciary for 16 years now, and the types of things that I've had to think about and work on during this period I never could have imagined. Certainly picking out what tone is most pleasing to the ear through the phone is not something I ever thought I'd have to work on.

Marksteiner: It's amazing how you can play a tone on your phone that's 18 inches away from your face, and you think, 'this is perfect,' and then when you play it over a telecom system, something happens that alters it wildly and it just does not come out the way you think.

How was the adjustment to suddenly having the majority of your staff working from home?

Perlow: Our clerk's office had been closed for renovations. We all moved back in on March 12. We had 24 hours together to see each other and work with each other, and then everyone got sent home again.

Marksteiner: I have been very impressed by the extent to which we are effectively using technology to get the mission done. I think a component that we lose, in an environment that relies more heavily on telework, is the ability to coach, train, mentor and really bring new people into the fold. It's important to dedicate a little extra effort to make sure that part is not neglected. It's easy to focus just on the inbox and the outbox, but that other important component of leadership is equally important.

The court has made some adjustments given the protests in Washington, D.C., over police brutality. What have those been?

Perlow: On [June 1 and 2], since we're not open to the public anyway, we made it clear that we weren't able to accept paper filings in the afternoons. But the court continued to operate in a remote posture as it has during the entire pandemic.

Marksteiner: The physical presence in the courthouse, since about March 16, has been limited to maybe eight people on any given day. There's a skeleton crew of us in there keeping essential functions moving, but for the most part, the changes we experienced [the first week of June] really were very little deviation from what the status quo has been since mid-March.

[Since Law360's interview Friday, arguments were heard with no staff on site for the first time on June 8, and they will be fully remote again on June 10.]

Are there any discussions of continuing remote proceedings, if all parties request one, once social distancing restrictions have been lifted?

Marksteiner: If there have been any discussions at all about continuing [to have arguments remotely] after we no longer need to do so for health and safety reasons, I haven't heard them. I would not presume to speak on behalf of our judges, but neither Jarrett nor I have been a part of any conversation that would suggest we're going to do this any longer than we have to.

--Editing by Philip Shea.

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