CIT Judge Barnett Expects Some Videoconferencing to Continue

Judge Mark Barnett, chief judge of the Court of International Trade, suggested that videoconferencing, which was rolled out as a salve for judicial proceedings in the face of COVID-19, is here to stay, especially for certain smaller proceedings in various trade cases. Speaking at the Georgetown International Trade Update on May 24, Barnett said that while in-person oral arguments are more in favor with the judges at the trade court, the prospect of continued videoconferencing to handle some smaller issues remains a real possibility for the court as it shifts out of the pandemic restrictions.

"In terms of status conferences, mediation sessions, things like that, it truly doesn't make any sense to have parties fly to New York for a 15 minute status conference or even a half-hour mediation where we're going to be going back and forth over the course of a couple of weeks," Barnett said. "It doesn't make sense to have people come to New York for that entire time when they could be doing more productive things unless it's necessary to bring them to New York to really get their attention. I think in terms of oral arguments, largely, almost all of us will try to get back to in-person oral arguments as the norm, but there may be roles for even video oral arguments going forward even post-pandemic."

Judge Todd Hughes of the U.S. Court of Appeals for the Federal Circuit, also speaking at the event, expressed his preference for in-person oral arguments while lamenting the state of the court's technology for carrying out videoconferencing. The appellate court was later than most to start conducting videoconferencing, and even when it did roll out the TVs, the practice revealed difficulties, the judge said.

Further discussing how COVID-19 has impacted the Federal Circuit, Hughes said he has seen more trade cases in the past year than in any year of his career on the bench. Since the Federal Circuit is primarily concerned with patent cases, the judge said he may only see one or two trade cases a year. However, given a recent slow-down in the number of patent cases at the appellate court since the start of the pandemic, Hughes said he has seen eight or nine trade cases this year, indicating a post-pandemic shift in the percentage of the appellate court's portfolio taken up by trade cases. Given this and the fact that the judges and their clerks don't hear many court cases, Hughes floated a piece of advice for litigants working on a trade case at the Federal Circuit: Explain it like the people you're presenting to have no idea what you're talking about.

Later in the event, Barnett discussed his initiative as a judge to help expand the trade bar and get different voices heard during court proceedings. In pursuit of this goal, the judge said he sends questions ahead of an oral argument so that litigants can break up the answers and have associates come in and answer some questions asked during oral argument. Hughes said, however, that this tack may be more difficult at the Federal Circuit since oral arguments are limited to less time, but he expressed his frustration at the situation.

"I talk to the law firms that do the patent cases, and they also express some frustration in not having enough opportunities [for young attorneys]," Hughes said. "Part of that is it's hard to solve at the appellate court level if you haven't brought them in, trained them, give them district court experience all the way up. Splitting arguments is one thing that's not always the best thing to do, but we're certainly open to it, and trade cases, honestly, may be the better place to do it. ... I think we're open to it, you just have to be aware and flexible that it's our argument time, so the one thing that sometimes happens is when you split the argument that we might not have questions on the issue that the younger attorney is there to present on."