Due to the current COVID-19 pandemic, effectively all hearings and oral arguments must be cancelled, rescheduled or conducted remotely. Because it remains unclear when it will be safe—and responsible—for in-person court appearances to resume, many courts have chosen to conduct these proceedings remotely. In fact, Wolf Greenfield attorneys recently participated in a remote, telephonic claim construction hearing in the District of Delaware. We’ve reflected the insights they gleaned from their preparation for and participation in this remote Markman hearing below. Ultimately, while the shift to telephonic or video hearings is a departure from the normal course of judicial business, IP litigators are in a unique position to navigate its associated challenges and, in some instances, representation may be enriched by the use of technology.
REMOTE HEARINGS ARE NOT A NEW ASPECT OF ATTORNEYS’ PRACTICE
Prior to COVID-19, telephonic appearances for court proceedings occurred fairly frequently. Whether due to scheduling, travel issues or convenience for the parties, numerous judges have conducted remote hearings on matters ranging from discovery issues to status conferences. Being physically present for these hearings is sometimes helpful to better gauge a judge’s or opposing counsel’s temperament and body language. However, video conferencing can restore some of those aspects, and even teleconferencing provides the ability to garner some information from the tone, pitch and volume of the participants. Ultimately, the same considerations that dictated presentation prior to the COVID-19 world should be considered going forward. The selected strategy will be dictated by the availability and familiarity of the particular remote medium and the technology being presented.
THE MOST TECHNICAL OPTION IS NOT ALWAYS THE BEST OPTION
With the shift of all court appearances to remote proceedings, it is important to consider both the advantages and disadvantages of video conferencing technology. Perhaps the greatest advantage of video conferencing is the ability to put a face to the interactions. But this advantage might be outweighed by some of the attendant risks associated with video-conferencing. Such risks include varying connectivity issues and hardware compatibility issues amongst participants. In addition, those preparing for videoconferences with the courts should take into account potential learning curves with different software options and should fully investigate security features depending on any confidentiality requirements the proceeding may mandate. Moreover, while many judges will have conducted remote, telephonic hearings, they may be less familiar with, and therefore less comfortable with, video conferencing. Whether to use video or teleconference for a hearing will be a discussion amongst the parties and will ultimately depend upon the judge conducting the hearing.
In Wolf Greenfield’s recent remote claim construction hearing, the parties quickly agreed to the “low tech” option of a telephonic hearing without video. Logistically, this meant that the parties provided their slide decks to the judge and each other the night before the hearing, and the judge was the one to advance through the slides as directed by counsel. When going with this option, removal of animations and simplification of slide decks can aid in streamlining the presentation and safeguarding against error. Overall, this format worked well for the Wolf Greenfield team and was sufficient for the technology at issue—mechanical and design aspects of a consumer product. In the claim construction context, with more complex technologies that may require more explanation, it may be more important to provide a technology tutorial in advance to the court, if permitted, or to design slide decks that can point out certain features of a product or invention without relying too heavily on highly technical graphics or animations. These sorts of considerations can be discussed as a part of the preparation for any remote hearing.
TECHNOLOGY CAN PROVIDE CERTAIN ADVANTAGES IN REMOTE HEARINGS
Typically, attorneys are restricted to only paper notes and binders during hearings or oral arguments. One advantage of remote hearings is that the entire attorney team—including the attorney arguing—will have access to their computers, and can more quickly access or provide a particular document or piece of information in response to a request from the judge or use it to refresh his or her memory in support of a point.
Another aspect of remote hearings that can be particularly beneficial is the ability for attorneys to communicate with one another while the hearing is ongoing. In a courtroom, attorneys may pass up notes to the attorney arguing or pass notes amongst themselves during opposing counsel’s arguments. However, this may often be a distraction or be viewed unfavorably by the presiding judge. In a remote hearing, however, attorneys can communicate confidentially and without drawing attention via webchat or email. This also extends to client representatives who may be dialing—or logging—in.
LOOKING AHEAD: COURT APPEARANCES AFTER COVID-19
While no one knows when the COVID-19 pandemic will end, it is possible that obligatory remote hearings may impact legal practice beyond this period of social distancing. For judges who may have been reticent to allow remote hearings or were uncomfortable with the technology needed to hold video conferences, COVID-19 may provide an opportunity for them to gain confidence and troubleshoot issues. For judges who were already inclined to incorporate technology, COVID-19 may only strengthen those convictions or provide empirical evidence to support allowing more hearings to be conducted remotely. Additionally, with even the United States Supreme Court switching to telephonic oral arguments and making the audio stream publicly accessible, there may soon be unprecedented access to court proceedings in real time.