 And the program shows there's about a 10 or 15 minute break while they reset the desk. Thank you This Federal Circuit Court of Appeals Judicial Conference continues in this session Circuit judges discuss their docket workload rules and decision-making process. This is an hour 20 minutes All right, let us begin for those I think everybody's Biographies are in the programs. My name is Carter Phillips. This is the third Program like this. We call the on-bond session with all of the judges of the Federal Circuit in some ways. This is a follow-on to the prior prior programs That were that took place in 1999 and 2002 Let me just say to those of you who practice before this court I would recommend that if you ever have an opportunity to go back and read The transcript of those programs which are reproduced at 193 federal rules decisions 272 and 217 federal rules decisions 575 Actually is a very large amount of what I thought was quite helpful information That's in there. Obviously brilliant questions were asked, but probably more useful is that the answers that were given are extremely Useful on a day-to-day basis in terms of trying to understand the nuts and bolts of the practice before the federal circuit There's a lot of good advice in there and Judge Dyke asked me a few minutes ago whether or not all of the good advice that comes out of these programs actually has any Impact on the practitioners some ways the judges are in a better position to evaluate that than I am But it's certainly not going to have an impact if the practitioners don't pay attention to it So hopefully this program will be another opportunity to get some more insights into ways that you can improve the quality of Which you would have of your performances before the federal circuit? I Think it's probably worth starting this program in essentially the same way that we've started the last two Which is to get a sense of the docket and how the court disposes of cases in 1999 according to the The reported numbers that as I read them out of the federal rules decisions the number of cases per judge was 225 in 2002 the number was 195 and in 2002 each judge was writing an average of 23 Presidential opinions and 30 non-precedential That suggests that there are probably another eight cases per judge being disposed of under rule 36 Which is the summary disposal those were the numbers we had then and I was going to ask the chief judge to begin by giving us an evaluation of how those numbers have changed if any and a comment on the impact of the docket both in terms of the workload that the courts experiencing these days and also some sense of What effect if any that has on the nature of the dispositions is between presidential and non-precedential so chief judge Michelle Carter I would say that the picture is very stable the numbers have not changed greatly from 1999 to 2002 the last two years of conferences to the 12 months preceding where we are right now We still have 15 to 1600 filings a year half of them are disposed of by attorney settlement in the other half by panel adjudication so the Fractions work out to be about 225 cases per judge Currently so that's very much in line with what it was before in terms of the difficulty of cases as I mentioned earlier Every time we have one more patent case and one less of anything else that tends to increase the burden on the court And we have a steady accretion of additional patent cases and they seem to become more difficult every year than the year before So my perception is the workload is going up hugely, but the numbers are actually quite flat In terms of the method of disposition it changes very little the presidential opinions always hover about a third of our dispositions Non-precedential opinions hover close to 50% in the high and mid-40s and the balance Rule 36 and again those figures have changed very little from 99 to 0 to today great Judge Bryson one of the questions I always get asked as a practitioner is By the clients is how long is this going to take between now from the and obviously the In some ways the more pivotal period is not from the point in time when the filing takes place to the briefing is done Because that's usually in the control of the litigants It's after the briefing is completed and moving on toward Argument and then final disposition and so I've just wondered what is the answer I can give my client the next time I get that question. Well by happy coincidence. I just was looking at this The numbers you have to be a little cautious with these numbers as with all statistics, but the Total period this does count the part that's on the lawyers the period from the notice of appeal all the way to the final disposition is an average of 9.8 months for our court now that includes not only the argued cases But also the submitted cases and that makes a big difference when you break the statistics down for the argued cases The number goes up to about 13 point two months and this compares In all other circuits and they lump submitted cases together with argued cases The number is 11.8, so we're doing a little better than the average among all the circuits if you take out the period from Docketing until the last brief is filed which is fairly attributable to the lawyers and extensions of time and so forth You end up with about six months in the argued cases that includes the period from the last brief until the argument is set Period from the argument until the opinion comes out The period from the last brief until the time the argument is set runs now at about 3.7 months Then we add another 2.3 months for the court to come out with an opinion Again, this is a little shorter in in both cases than the average among the other circuits And that I think in particular given the fact That we are at least it's my impression from my own experience We are fairly generous in entertaining applications to postpone oral argument upon a showing of need Some of that time is attributable to lawyer requests as well. So there is a Reasonably prompt opportunity for argument I'd say When you add in the applications for extensions and you add in some lead time that's necessary to give the attorneys advanced warning of their Compending argument. It's really I'd say a delay of a couple of months. That is just Time that cases sitting in the clerk's office waiting for assignment to a panel, right? Okay Just worried is the is there anything internally that gets done to try to move the cases along and what kind of scrutiny is there of the timing and what Methods of persuasion subtle or otherwise are employed Well, first of all, let me say I think I think the court isn't quite good shape in terms of the timeliness We get monthly data circulated to us and at last reading There were no cases that were more than nine months old from my date of submission date of argument At the time I came on the court 16 years ago, they're approximately 25 that were more than a year ago a year old and that was obviously a real problem and Apropos comment some of the comments made this morning about whether we ought to take more cases in bank taking cases in bank really impacts the Timeliness of deciding regular docket I Think we had close to ten cases in bank in various stages in those early days So I think we're in quite good shape now in terms of the pressures that can be brought to bear It's basically up to the author and judge to decide to to to write his or her opinion and to circulate it and Some judges are clearly faster than others, but Panel members generally do not nudge an authoring judge and say where is that opinion? I haven't haven't seen it yet. It just doesn't doesn't Happen On the other hand when an authoring judge circulates a draft opinion and doesn't hear from a panel member After a week or especially after two weeks and may just send a friendly note or maybe now an email and Is it possible that this So In that sense we do nudge colleagues at least for a vote a vote should be easier to Together then then a draft opinion the chief judge certainly has the authority to press an authoring judge Happily I haven't been on the receiving end of such pressure I have seen a chief judge who will be nameless send a note to the whole court saying will be nice If we could could get some of these older opinions moving But I should mention there are a lot of factors that that can result in delay There are many issues in some of these cases. Of course, these are the issues brought by all of you There may be a dissent and The dissent usually is written after the draft majority opinion is written and that takes time And sometimes when the dissent is written it shakes loose An earlier vote in favor of the majority position and you're back to square one And then for presidential opinions We circulate them to the full court and while the full non panel judges Not supposed to and generally don't say you've got it wrong be sure to one not a When there are questions of conflict or statement of law other judges do Sometimes have something to say and that can lead to discussion around the court and once in a while There can be a suesponte internal request for a poll or an in-bank poll and Matt takes time and sometimes we agree to have a discussion on the issue and that can be But often till everyone's around which may be a month so there are a number of factors that can result in In delay of decision my own guideline and and the the courts officially are semi-officially Use 90 days as a guideline a produced list and our court circulates with a number of pin of opinions by Judge that are more than 30 days old I use that as a guideline Sometimes cases can take up to 180 days six months. They're complicated and have a lot of these other factors operating but those are generally the the Parameters of how we operate and what the pressures are subtle or otherwise Chief Judge Michelle, do you have Something to say about the sending part of those messages as opposed to Judge Laurie's comment about the receiving part It's only a footnote, but I do want to say two things. I think all of my colleagues are extremely conscious about the running of the time And carefully check these monthly computer lists to see which of their cases now are starting to get older than 30 days or 60 days and secondly from time to time I send a little private communication and Uniformly colleagues have been highly responsive to that. I tried to do it sparingly and Probably not welcome, but once in a while. It's probably Appropriate possibly Even necessary and finally there are a number of colleagues, of course unnamed who had something of a backlog in the past and Those backlogs have been greatly reduced and in several cases entirely eliminated and and some of those judges are now highly current So I offer that just as a composite picture of how we try to be very mindful of the fact that your Clients are waiting for an answer Appreciate that. Judge Lynn Judge Laurie just mentioned that sometimes you get together for a conference as the of the entire court if you're Debating a particular case So I was I was curious whether given the ubiquity of emails in general If that's changed some the deliberative process that the court goes through as opposed to you communicate in person Do you talk one-on-one? You always meet as a group Do you send emails back and forth as the as that has that process changed any over time? well when when I came on to the court and and to this day the Official mode of communication around the court is in writing by memo And I must say that coming from private practice that was a refreshing change of pace After those days of chasing after pages and pages of emails but The efficiency of email has now worked its way well into the halls of our court and more and more We're using emails for communication and many of us will be reading and preparing at home in the evening or on weekends and Sometimes when we're traveling and with the laptops with the blackberry devices The use of email facilitates Communication greatly so To the point where we are now contemplating making email the new official channel of communication You mentioned the internet and we of course are using the internet as well Occasionally we will use the internet on our own independently to do a little background Research maybe on some technical issues. I won't say that's significant I would say we are we're using the internet and computerized legal research extensively Many of us old-timers still like to to flip through the books, but More and more we're using Westlaw and Lexus just like everybody else We have downloaded software for on all of the computers the judges use To permit us to insert hyperlinks to Westlaw or Lexus for all the citations in our draft opinions and that has greatly improved the ability of the judges to review these opinions and to And to check the background sources that are cited So I think these are all very positive developments as I understand it The use of this software is quite commonplace in law firms and corporate law departments But it's not widespread in widespread use in the judiciary But it's been very helpful to us, and I suspect these kinds of things will continue Great. I want to one thing I should say to you is that in the previous sessions we sort of went through in an almost Sequential order from beginning to end of the process of the appellate process and the reason we're not doing that this time is because we've Are it's already out there. You can go read it And what I'm trying to do here is to kind of fill in some of the holes some of the questions We didn't get asked the last time and then try to update some of the information as we go along So if this seems a tad more scattershot than the last two there is an explanation for it so on that note I'll shift gears completely here and and Ask judge Shaw you spoke earlier this morning about the mediation program and So I don't think we need to kind of go through too much of the nuts and bolts But I would I was particularly interested in how useful I know that the mediators You know volunteer in a sense or they apply, but I was wondering what criteria you use and evaluating Whether you know which mediators to select and and then I suppose the other question is you know How much in the market are you for more volunteers at this point? Thank you. Well, I'll answer the I'll answer the first the second question first. We are very much as I mentioned earlier in the market for mediators, there's no question about that as far as the process is concerned as I mentioned earlier the application form for mediation positions voluntary media Asia mediation positions is on our The court website. It's also on the federal circuit bar association website Applications are submitted on either way they come in to Ed Hoskin our Circuit mediation officer and Ellie there they then are forwarded to the Mediation committee which consists of myself judge Gaiarsa and judge dyke and we review the the applications and In the case of applications that are accepted the applicant is notified and then they're then placed on the roster of mediators that we have for the program in terms of the requirements Starting out the probably the most important requirement that we have looked at and it's really a sort of a hurdle if you will is As it now stands a mediator cannot be involved in the active Practice of the law that was a decision that we made earlier When we set up the program and the purpose is to obviously to avoid possible Conflicts, that's the most important initial initial Requirement that we have to deal with The second requirement we have to deal with obviously is making sure that We're have an applicant who's willing to serve on a on a basis on a pro bono basis without pay except for remuneration of Sort of incidental expenses and finally in terms of once you get beyond that We try and get the best sense we can as to looking at the person's credentials as to whether he or she Based on their experience will be a good mediator in the pilot program So just like you're on that committee, I just wondered if you have any early impressions about how the program's going or or Changes that you might foresee in a not-so-distant future well, I I think the having a mediation program could be very important to the court in in reducing our workload and certainly there are many cases in which Animal members once the case comes to oral argument we prepare for our argument Scratching our heads a bit and wondering why this particular case didn't settle. I don't think yet the mediation Program has proved to be as valuable as we would like it For settlements out of the pilot program 20 cases going into mediation out of some 250 which And candidates for for possible mediation But the purpose of any pilot program is to learn from it and there are issues that I think the court will have to address in the future About the mediation program one of those And the first one is going to be whether to make the program permanent And if we do make the program permanent then there will be a number of questions about how it should be structured Probably the most important of those is whether the program is going to be mandatory right now It's it's voluntary and that may explain to some extent the low response rate That we've achieved so far there are other issues including whether Certain categories Cases should continue to be excluded from the program one large category of cases that's excluded is pro bono pro se cases and There are real questions as to whether a mediation program really should include those there are other questions that have been raised with us such as whether the mediators pointed by the court should be compensated whether We should have a mediation staff which handles some of these mediations for example as the DC circuit does they have a Voluntary or they have voluntary mediators just as we do but they also have staff who mediate some of the cases and These are the kinds of issues that will be Considering and I think of the very valuable to us as Chief Judge Michelle and Judge Shaw had mentioned earlier to have feedback from the bar as to how this program can be Improved and how it can be made more successful because it has the potential to be a great assistance Chief Judge Michelle can I ask you about the What if any training the court provides to the mediators or is the expectation that they come with their own experience and Therefore you don't need any at this point I believe we have a strong preference for people who have some training and experience with mediation But we also have provided some very high-quality training through the Federal Judicial Center and the participants in the two training sessions we've had were all Highly pleased with the value and quality of it So we require someone to weigh in and then we provide some more and it has been very well received And just y'all can I just go back to you for one question Do you have a kind of a projected date to come out with sort of the next round of? Changes or evaluations of the of the pilot program. I mean, what's the sunset provision for the pilot program at this point? Well, there is no thank you. There is no Sunset provision per se as I indicated in my brief marks earlier We are in the process now of Assessing the program and its experience and the experience that we've had with it over the first Six to seven months and I would think that within a time frame of looking over the fall We'll be sitting down and deciding these various questions as to number one What changes do we want to make in the program in its present format and then to? Looking at some of the broader questions To which judge dichotomy Can I ask you one last question on that when when you adopted this program? Did you pattern it? After any of the other circuits, or did you sort of pick and choose what you thought were the best practices? We looked We were given Really a lot of information with respect to What other circuits do we followed? guidelines as I recall specifically from the seventh circuit the eighth circuit and we had some very helpful meetings With the circuit mediation officer Nancy Stanley in the DC circuit, right? Okay Judge Garza, obviously from my perspective the most important part of this process is the oral argument process So we'll shift gears slightly to this one. I one of the Complaints at least that that some people you know a lot of these questions come from members of the bar I didn't make all these up. So we'll start we'll start with that But the but but one of the questions that was asked is You know there's sometimes it seems at least maybe to the litigants that the time for oral argument is not always Fairly allocated that is the there's 15 minutes assigned and then and the red light goes on and some judges let the red light Mean something and other judges don't let them don't require the red light to mean anything in my experience At least at the Supreme Court if the red light goes on you stop in the word middle of the word it and It's a little easier with the new Chief Justice But not a whole lot easier than it was And I was just wondering whether or not the court has given thought to perhaps coming up with a more Uniform approach to take with respect to the timing of oral argument My knees are so bad The federal circuit I think any kind of a rule which sets a fixed time Is still under the control of the panel itself and by the senior member of that panel the clock is controlled by the senior member for the most part and 15 minutes is a rule. I think that for the most part works quite well What one of the aspects obviously is that the panel itself if it is very active and questioning There is time which is added and normally the person who is the senior member of the panel will allocate time to both sides on that basis for instance, we had a case in Just recently this past Court week where each side was given an additional 10 minutes Because of the number of questions that the panel had and I think a flexible time period with a control by the member of the The senior member of the panel is a much better rule like in my judgment and trying to set a fixed time But I think even if we said 20 minutes and there's a lot of questions from the panel members You're gonna go with that time period So more flexibility would be built in I think 15 minutes per side is a rule Which for the most part is followed But for the appropriate cases where there are complex issues and maybe more questions from the panel You do need the additional time and the person in the middle does Essentially allocate that time to both sides. Does anybody ever I mean have you thought about the possibility of after the briefs are filed And read by the panel to think about whether ahead of time you would identify this one as potentially more complicated and therefore Give it an extra five minutes or an extra ten minutes. We have number of times on panels that I've sat on the members of the Panel agreed to give particular parties additional time to Yeah, I didn't ask anybody to collect the data on this But did you know off the top of your head whether or not the request by Counsel for additional time if they're made or tend to get granted or not granted several of those cases were to a sponsor in a part of the panel and sometimes the parties do ask for additional time and for the most part the panel is probably More inclined to say 15 minutes with some liberal overage on each party and I didn't ask this question either, but it just it just occurred to me Sometimes it has struck me at least not necessarily in the federal circuit But certainly in other circuits if I had an unusually complicated case it oftentimes ends up as the last case of the day Is there any effort or made along those lines that you could identify? not necessarily by My own experience at the federal circuit, but you're right and number of the regional circuits and even the state Supreme Court's The time periods are extended to the point where everybody is falling asleep by the time I finish with the oral argument, but I Believe that from my past experience at several regional circuits that the federal circuit probably has one of the better allocations of time for all argument and some of the others right judge post This is a subject that's somewhat near and dear to my heart because I think I was one of the stronger proponents of it and For a very brief period of time the court experimented with allowing the panels to be identified a few days ahead of time I welcomed that change and then about as quickly as I got accustomed to the fact that it existed then it was Withdrawn rather summarily. I wondered one if we could get some kind of an explanation for what happened and then to Be one interested in other people's opinions as well But also just trying to figure out whether this is a dead issue now or something that I can keep banging my head against the wall Well, I can't give you an official position I don't think there is one and I don't necessarily know the details of why my colleagues necessarily took the positions they did I mean certainly Carter we heard from you and others and it was the Fair position of the bar to assist them I presume in being more prepared and be being able to be more responsive to the judges that the Bar sought this change and I think again that it I think it was the feeling of many of our colleagues That the result of that was at least anecdotally Was that attorneys assumed or thought that if they knew the judge it would somehow serve their purposes to Direct their argument to a particular judge and his or her views is expressed in a particular opinion And as one of my colleagues has said from the bench previously when a lawyer tells him well You said such and such and such in such case judge Lori judge We'll quickly quickly remind the attorney that it was the court's opinion and not his opinion and so I think there was a feeling from the bench that it Person kind of personalized the cases for the attorneys or they felt that they should personalize it to the judges and I don't think we felt that that's the way the argument ought to operate Does anybody on the panel want to at least I mean, I don't know so I want to identify who the lawyers were but if anybody who had that experience and Why it was particularly off-putting. I just wondered if I realized that's a wide-open judge Blager When we first started on that I was a strong advocate of the lawyers position That is I thought it would be useful for the lawyers to know who was going to be on their panel but I have to say that It didn't take long before I began to see some rather strategic behavior on the part of council Including the fact that you're looking at me right now worries me a little Guilty conscience Including the pulling of a case from the court right before we were prepared to hear all argument Particularly after I'd spent some hours reading through those dense briefs No bitterness there You know if they're going to pull the case they should do it before I have to read their briefs It was not only the point the judge post made which is a good one, but also evidence of some strategic behavior which struck me as as just not consistent with what We had been represented to be the reasons for Making that information available. So I for one now not so sure it's a good policy to To reveal the panels or change our normal practice given the Preference if possible to increase the number of cases that settle judge brison. I wondered whether You know one one possibility is if you release the names of the judges as the dc circuit does well ahead of time That a lot of court a lot of litigants may say well, I don't want to I don't want to take a chance with that particular panel Let's settle this thing Situation where the names of the judges are revealed if you go into the mediation program Well the dc circuit I think expressly aims at that result and Along however with the proviso that you get the names well in advance you also get a date certain and no excuses no contingent continuances no gosh, I you know, I had a A no refund ticket to the Bahamas and please reschedule this because of of course the risk of Trying to get a different panel on the second draw Uh One of the things that we do and we think this is a good thing is to Be fairly lenient with people who come in and they say We just can't be there on Fifth of march, can you kick it over until the next month or the next time it's available? And of course if we haven't revealed the names of the judges then the risk of panel manipulation is is much reduced Um So while it's true that you may get some settlements whatever you think of the merits of settlements that are induced by revealing The identity of the judges. Uh, I think you also lose something In terms of something that may be valuable to the lawyers, which is a certain amount of flexibility Can I ask you one question procedurally if if does it does it sometimes happen that a Litigant will ask to move the argument back after the briefs have been distributed to the panel Oh, yeah, it happened. Well typically and then does this dinner was going to ask and then if that happens Does the panel Stay on or do the briefs then get recirculated to a new panel? That's tricky for us because uh, it just depends sometimes yes sometimes no, but uh, one of the problems is that It's each of the uh, sittings of course are set a month or so In advance and you have to kind of make a special provision to reassemble that panel Right, uh, and you end up with an extra argument somewhere in the middle of an argument week Usually in the afternoon when you can get those judges together shouldn't administratively. It's a little more difficult But yes, we get a lot of of Motions for continuances that come in that you know, I'm a sole practitioner I was planning to be there, but uh, my wife Broke her leg and I I can't leave and so please Kick this case over and it's sufficiently sympathetic case. We do Grant those kinds of motions, but the dc circuit doesn't right their their position is That's too bad. Um, you know find another lawyer Of course, they tell you very far out ahead of time It's good that they don't actually any any descending views from the change in the rules On the panel no, okay Just a point of information I I think it's important to remind people that if you if you have a conflict that You foresee in the future. There's another way to solve the problem other than to wait until The case has been assigned to a panel and that is to ask tell the clerk's office That you foresee this problem in the month of october or not available on october 8th And could the clerk's office please set the case for another day? My understanding is the clerk's office very co-opted about that and that's the way it should be done Where you know apart from the broken light situation you foresee a conflict in the future Yeah, it's interesting. I'd like to it'd be it's worth at some point I suppose having The clerk representative of the clerk's office here to be able to ask questions because I'd be curious to know what the answer is In terms of how common that practice is and what the response is at some point Chan you may want to make an observation about that as part of one of these sessions All right, let me let me just add one further point Everyone should understand This is not a simply a matter of administrative convenience. You know, you're on the printed schedule So we want to be there our court. I think uniformly is a court that spends An enormous investment of time by the judges and time by the law clerks in preparing for your arguments And so there is a very large investment of court time and court energy We don't have a system for example. I sat out in the Ninth Circuit last year And under their system one judge on the panel takes responsibility for really preparing The brief the court memos what we call The memos from our law clerks. They have one judge prepare The memos for the entire panel. We don't do that in each of our panels each judge Takes responsibility for all of the cases before that panel So everything is multiplied by three So there's a big investment in time and energy and and effort in preparing for your argument And if for some reason you can't show up or you decide you're a white broker a leg or whatever You really do you really do cause a very large dislocation And reallocation of effort within the court Actually, I was going to ask the I didn't ask this question either before but And maybe judge bryce and you could answer But you know, there are obviously a significant number of cases that get submitted on the briefs As opposed to the oral argument one Do you think that's the right mix that's that takes place or Would you rather have some of those cases actually argued or Sometimes you regret that you didn't have an oral argument in some of those cases. Well, yeah, I do I don't know that I'm the The typical person on this on the court because I I'm a big advocate of The value of oral argument. I think I would put it this way that I see more cases In which I wish that there had been argument Then I do cases in which I wish there hadn't been argument Some of the submitted cases some particularly some of the cases and people Submit close to the time of argument Turn out to be cases in which I had prepared Questions that I really wanted to know the answers to and it's it's awkward You can always send them a letter and say please respond to this question But you don't get much interchange back and forth. I was looking forward to Getting some kind of exchange with the lawyers that would clarify something important to me at least about the case Or show me that my concerns were not in fact important to the case and I don't get it So yeah, there's uh I think oral argument is a very valuable part of the process and I think that some of the cases that are submitted are The ones that I regret Judge lawyer you wanted to say something I think it's important to note that all counseled cases are scheduled for oral argument Cases submitted by pro says Are not for the reason that we find they just want to tell a story as if we were a trial court And they don't focus on the law on the real legal error But when a counsel case is not argued It's generally because the parties a wave argument and and stipulate to that now. I think our Procedure is more tolerant of oral argument if you want to call it that Then some some of the other circuits I've sat in other circuits and still do and At least until the circuits I've sat on The procedure is The only cases that are argued are those that at least one of the lawyers wants to hear And and they set up nine or ten cases for a day And the lawyers decide I'm sorry the judges decide what should be argued and maybe three Out of three or four out of that ten are argued. So I think we have quite a Tolerant policy with respect to oral argument. Yeah, well somebody who Enjoys oral arguments. I appreciate it. I must say judge lent Yes, I would just like to add that we do see from time to time Cases that are submitted on the briefs by pro se parties that raise very important sometimes Issues of first impression and we have started in those kinds of cases to Appoint counsel to represent the party so that we can Facilitate oral argument and have those issues Fleshed out in an oral argument before they're decided and I think that is a very positive Fairly new development Chief judge michel you and I talked about that a little bit I was going to ask you about the pro bono process and The extent to which there is a I mean a lot of a lot of circuits do have programs where Lawyers volunteer to represent pro se lit against depending on the circumstances Historically, I don't think the circuit has had that but as judge lent said there's now some movement in that direction Is just curious sort of how formal it is and where it is in the process at this point Well at present it's rather informal We've had some discussion among ourselves and I've made phone calls and fortunately A handful of very experienced distinguished counsel agreed to take assignments In pro se cases on a pro bono basis I expect that the numbers won't be large, but I do think we'll have a steady stream each year of A handful or two perhaps the cases where we'll need a volunteer and I'm very hopeful that They'll be willing just throughout the bar and I'll be able to make more phone calls to more people and get more yeses Judge Newman that both the chief judge and judge shaltaday have commented on sort of the increasing complexity Of the cases that come that have come before this court You've got obviously significant experience in this and I just wondered from your perspective Do you think the cases have become more complicated? Is that the reason why it seems even though the numbers don't look as though that there's more of a burden on the Members of the federal circuit than there were before that that the nature of the cases has imposed us a greater burden on you to Deal with the caseload Well, I don't think it's a matter of complexity of the cases What I think happens is that we have now such a large body of of law Generally consistent and if not with a procedure for a remedy the consistency So that the questions of law Are not perhaps as difficult or as complex as they were 20 or 15 years ago But what has happened seems to me is that the issues that are being litigated Are issues that might not have come to court in the past Either because a patentee might have felt there was no hope or a potential infringer might have felt that with the vast body of Decisions that we have there are opportunities that didn't exist What I find is that the cases in general are Much more difficult to decide Not so much as a matter of complexity But because they now tend to be in the gray areas Where there are a budding principles of law where the policy Either has not been developed or where the policy Favoring one result or another might be in conflict and have not yet benefited from Uh an accumulation of of precedent So it's been it's become quite clear to me that many of our cases are Much harder to decide at least harder for me to decide again not because of the complexity of the issues But because they tend to tread new ground That hasn't previously been decided and requires thinking and comprehension that hadn't been Required as the law was being developed in those areas now see this and this isn't limited to the patent situation In fact it seems to me that it occurs more in our other areas of jurisdiction than in the patent Just play grip the cases and I know if you agree with it the cases of some way become harder to decide But it seems to me to the extent that that's true It would give some additional weight to the comment that was made in the 2002 session by one of the judges Who said that the what annoyed? Him in particular was the failure of counsel Either in the briefing or at the oral argument to say right up front This is the mistake that was made by the trier effect or the decision maker in the proceeding below And this is why that decision ought to be changed that decision is wrong And or alternatively obviously gone the other side by the decision was right And I just wondered one I thought that was great advice I hope everybody in this room both heard it at the time and has and has followed it But I'm just curious as you're the consumers of that advice more Do you see any changes over time in that regard? We see of course and the rules provide a statement of the issues in the beginning of the briefs And so we have a sense of what they are the perhaps most notable difference has been because of treating the markman situation as a question of law There are a number of issues that are presented to us On the anticipation that they will receive de novo review Rather than a deference to often very extensive and profound rulings by the by the district court But in terms of increasing the number of issues or making them more complex There are certainly variations among brief writers But I think many of you have also noticed one of the first questions that you'll get from the bench is What is this case all about? What is the issue? If there is one or two that will be disposed of All right, but judge plague if you're going to ask that question anyway, shouldn't the lawyers Answer the question for you at the outset rather than wait for you to ask that question Seth waxman. I thought this morning raised a very interesting question about the role of the supreme court And noting that Two ways of looking at what the supreme court's duty is that is does it Only step in when the circuits are in disagreement and if the circuits are in general Comfortable with a particular rule the supreme court ought to mind its business Or does the supreme court see itself as a court of eras and Will step in when they think there's some substantive or perhaps even procedural error going on We don't have in our court in my view at least any doubt about what we are and what we do I view us as a court of eras That doesn't mean we make them But Our job is to Identify Reversible error if there happens to be one by a trial judge And then correct it and give proper guidance to that judge and all judges as to Why there was an error and how to correct it and how it shouldn't happen again in our Rules we require that at the beginning of every brief appellants brief There be something called the statement of issues which judge neumann referred to I for one always look at that statement at the beginning because I use that As a limiting factor on what it is i'm going to concern myself with in the case That is I don't want to hear about all the wonderful things that went on in the trial court That you didn't find to your satisfaction What I want to know is exactly what error is it that the trial court made That you want us to treat as a reversible error and need correction I have to confess however that so often the statement of issues is useless Uh or uninformative because it starts out by saying something like The trial court or the district court erred in x y and z for and then goes on for about 15 lines Trying to capture the whole litigation In one paragraph not very useful no reason that it has to be in one sentence. It's not like a patent claim Uh You can actually make a literate statement if you want to Using more than one sentence and that can be helpful to us Uh Moving to the broader question that carter has raised and that is I know you know your case and I'm delighted that you do Well in most cases And and that's very helpful, but it's not helpful if you start out in the middle of your case And then go on to whatever you think is the end of the matter that you're bringing before us Because we don't even know what you're talking about. We don't know what the subject matter is We have a broad jurisdiction. We have a lot of different issues Even within the patent law, there are any number of possible issues that can be raised And if you start in the middle of your case, we don't know what you're talking about So I would urge that you begin at the beginning you tell us what your case is really Basically about and then you develop your point Carter asks if there's been some change since the last time we gave this little lecture I'm delighted to have the opportunity to give it again And I guess the answer to it is carter. I have not done a statistical study Uh, but my impression is that there's been no dramatic change in the way the bar Perfeits its briefs and that's to be under that's to be expected. I I didn't really think there would be a dramatic change But we would urge you for the benefit of your client That you listen up on this particular point because it's helpful to us But it's also helpful to your client It's a continuing matter Carter that I think we have to simply keep reiterating from year to year I appreciate your willingness to give us that opportunity Thank you One of one of the big changes that will affect how all of us write briefs. I think in the in the foreseeable future is the Change in the rule that allows the citation of uh, non-precedential opinions and this circuit I think judge bison was probably the most Vocal in opposition to that rule change, but now it's in place Um, I I know it will affect some of what I have to do with respect to research More curious what you think it'll what effect if any it'll have either on what you do What you write in the non-presidential opinions and what you get what you plan to use And you know how the court will respond to those when they start being cited Well, I think that really remains to be seen and I think it may well Uh depend very much on how the lawyers respond to the new rules now just to to be clear because this has been Uh a little confusing in the development of this new appellate rule The appellate rules committee had proposed to them A rule that would essentially abolish all non-precedential opinions making every opinion Not only citable but also Required to be treated as a full presidential opinion the appellate rules committee did not adopt that proposal that instead adopted a more modest proposal We have opposed the more modest proposal that Was adopted over our objection and that modest proposal is that you may cite The indeed not only may you cite but no court may have a rule that prohibits you from citing non-presidential opinions However, the appellate rule did not go on to say that any court must treat those non-presidential opinions as precedent now The change in the appellate rule will of course require us to change our rule rule 47.6 b Which now provides that you may not cite non-presidential opinions and we are in the midst of making that change However, of course the one thing we uh, we will not be able to retain in that rule is the uh Prohibit the citation, but we will be able to retain if we so so choose the portion of the rule That says we will not treat non-presidential opinions as presidential now that raises the question of whether this is going to result in a Big change in our process. I think if we see Cases in which non-presidential opinions are being cited in droves to us in the hopes that That we may be persuaded by finding opinions In large numbers which lawyers assert without necessarily the correct Stand for the propositions they're trying to advance I suppose it could result in our Either cutting back in numbers of non-presidentials Or issuing more rule 36 is in order to avoid that. I would I would suggest That There was a comment if I can cite one of my colleagues That was made to the appellate rules committee at the time this new rule was being proposed Which was made by judge dyke and he pointed out that one of the real risks of this rule change He felt was that lawyers would be more enticed maybe than even before to write briefs which are essentially a collection Of numerous citations in an effort to try to find a case that's close on its backs to the particular case as opposed to arguing based on reasoning An analysis But instead just larding up the brief with cases and cases cases and I would commend to you Even though that Suggested may not have persuaded the appellate rules committee. I would commend to you that the suggestion is a good one For lawyers to take into consideration Just a little little footnote the chairman of the appellate rules committee Uh That formulated this new rule and one of the members have both now to elevate the supreme court. So we stop the protest Yeah, I didn't have great hope for that for your opposition to the rules as these as those developments Unfolded uh judge proste. I wondered if we could shift in some ways I should ask this question as a follow-up to the questions from judge newman and and before but There were two comments that were made in the previous session And I can't remember now whether there was one one was in 1999 the other in 2002 But there were two separate comments One of the judges said that the cases, you know, there are a very large number of very easy cases And somebody else said that there's a huge number of very difficult cases And I think those comments actually can be reconciled But I thought I would I would ask at least one of the judges first to try to reconcile those observations For this audience. Well, first, let me say that I as the junior judge I take great comfort when I hear judges experience judges like the chief and judge newman Comment that the cases are getting harder because it's very comforting to hear that because I find many of them very difficult But the difficulty comes in Different varieties. Um, there are some cases where the science of the technology is just very complicated And thank goodness. We have a lot of very well-suited Technical brilliant clerks to help us out in that regard And then there were just cases that happened to be close on the facts and those cases probably were always around and continued to be around And I I agree and I understand judge Newman's observations about the evolution of the law I must say I came from Capitol Hill. I had spent 12 years and the solution to Questions which you can't agree on on Capitol Hill is well, let's just let the courts decide Um, I did not know then what I know now, which is I'd be at the receiving end of some of those legislative Provisions and we get a lot of statutory construction issues That's why the veterans cases and the personnel cases tend to be very very interesting and challenging as well Because there are novel and interesting issues of statutory construction And then there are cases and my colleagues have alluded to this morning that become complicated Largely because of the failings or the intentions of some of the advocates Which sometimes try to make the science and the technology even more difficult that it necessarily has to be Or try to hide the ball or submit incomplete appendices, which make it much more difficult For us to delve into the record where that becomes necessary. But if you want an answer, I'll go down the middle and say 50 percent Anybody have a different percentage in mind at this point One of the things we're supposed to be focused on in this in this program is sort of what's the future look like And it seems to me that one of the interesting developments that that'll probably Impact at least some people in this room in the future is video conferencing As a mechanism for oral advocacy, obviously people who live in the district probably won't have that bit of a problem But for advocates in the california Having the capacity for video conferencing is is at least a potentially A good thing and judge lin I was wondering one What's the status of that technology at the federal circuit at this point and then sort of what's the prognosis for the future in terms of The use of that technology Well, of course Before our ceremonial courtroom courtroom 201 was refurbished. We really didn't have Effective video conferencing capability But we now do in courtroom 201. There are cameras that are Directed toward each of the three judges on a three judge panel. There's a camera directed toward counsel at the lectern and That system has been in place long enough now where we have pretty much gotten the bugs out of the system And I think it works fairly effectively Our courtroom 402 when it's refurbished will have the same capabilities Now because we didn't have that capability before that was something that was really not considered video conferencing But it undoubtedly is a topic that will come up And will be considered There hasn't been a tremendous Impetus toward having video conferencing and I think that's understandable For a number of reasons there first of all There is real really no substitute for the intimacy provided for Having counsel in person in the courtroom with the judges for a face-to-face interchange There's no substitute for that no matter how good the technology is Uh, secondly, of course our court, we have the benefit of being all in the same building So we're not spread out like several of the circuits Uh, and the lawyers that appear before us are Quite accustomed to traveling for the most part and don't find that to be particularly problematic Having said that with the capability in place with our nationwide jurisdiction Uh, I I think it's an important subject that will come up and will be considered And no doubt there will be cases certainly in the short term where there is justification for having a video conference argument But for the moment in any way, that's the exception not the rule Now judge steik I this that I didn't give you this question ahead of time But that what raises in my mind obviously is if you have video conferencing capabilities You also have cameras in the courtroom and one of the big controversies obviously Certainly at the supreme court level is whether to put cameras in that courtroom, but there's also legislation I think to require maybe not require but to create a presumption of cameras in the courtroom For all of the courts of appeals. I'm not just curious what uh, as one who Advocated in the supreme court for a substantial period of time. What your view was on cameras in the courtroom in general Well, I'm kind of recused on that question It's not I think it's not a big issue for our court. We haven't had a lot of requests for camera coverage And I'd be surprised if that changed in the future of mine own experience Having argued I'm not looking for three four times in courtrooms that they had cameras and there wasn't It wasn't that different that The concerns that people have about having cameras and trial courts in general don't apply to the courts of appeals, but I think there are different views about it and Probably any requests or it would be Considered on a hot basis now As I understand the legislation done in the legislation itself in a particular panel Is ready to allow it in any individual case Um, just one follow-up comment on the on the video Conferencing for argument I'm Wouldn't be very unhappy to see that happen very often. I think it's This judge wins that a huge benefit To having the lawyers present there in the courtroom having all the judges present there in the courtroom and I suppose it's inevitable that just as we we sometimes have somewhat frivolous requests to Move the case from one date to another because someone wanted to attend a party That's happened. Well, that's that's nicer than breaking your wife's leg We will we will see requests for for a video argument because somebody wanted to argue the case from the from their beach house May not be too well to see well I will tell you as an advocate at least that and having done handle at least two cases through the videoconferencing Technology, um, it is very disembodied Experience it just it there is something very much lost from this side of the podium through that process And in bay eventually, I suppose the technology will improve but there is still a terrible talking over problem that comes up and You know one of the keys to advocacy in general in my experience is to listen to the other person And if you think you're talking and they think you're that they're talking at the same time The ability to listen. I think is largely lost that said I do think you know in response to the comment that judge Bryson made which is there are some cases that get submitted on the briefs that it would be nice to have at least some Opportunity to ask questions for it does seem to me that this could provide at least An opportunity in some instances Part of I think you have to differentiate between videoconferencing and videotaping of the oral argument I think most judges probably would not object to videotaping of the argument We have videotaping possibilities at the federal circuit right now Videoconferencing is a separate issue, right? And I think what the legislation does do is allow videotaping of the oral arguments But I'm mixing and matching some of these things, but Judge lorry there was a proposal actually the two proposals out on the table right now I think one's going to die pretty quickly about Expanding the court's jurisdiction to deal with the immigration cases and there's another one to expand with respect to the asbestos cases I was just Given given the sense that People in this podium feel or at this bench feel a little overworked at the moment Strikes me that those are probably not proposals that are going to meet with a great deal of enthusiasm here But I thought at least ask about it You all know the meaning of the word tsunami We have 1600 cases per year now adding 12,000 totally transforms the court Uh We don't of course decide and then chief judge has been very careful not to indicate That we would or would not like that or other jurisdiction, but He's also pointed out in testimony The effect that it would have on the court We need a large number of new judges. We probably need another building based on the president's numbers Our jurisdiction would be about 88 percent immigration cases, which Is is uh, obviously would would make a different court Now whether it makes sense to have those cases reviewed by a national court of appeals I I'd no opinion Uh, I have uh, I've heard a few immigration cases on other circuits But that hardly makes me an expert on on whether there's a need for a national Court of Appeals for those cases, but certainly If congress decides to do it then we will In its infinite wisdom is that Related question chief judge michelle Do you have a view about what the what the sort of optimal number of judges on this court would be now? Is it are you there or is it? Would you You're not going to answer that It's a it's a prerogative. I'm sorry. I did answer but I must have mumbled the word 12 12 I really do think that at 12 we have optimal balance between Cohesion and internal communication and some decent hope of consistency On the one hand and enough courses to haul the wagon on the other hand And that as you go up from 12 You of course get more capacity to handle cases or to handle the same number of cases Perhaps a bit faster, but you start losing rapidly in my opinion with each additional judge the kind of cohesion that Even more important for the federal circuit than perhaps on any other court of appeals So I would like to see the caseload adjusted if necessary rather than adjust upward the number of judges on our court I really think on a considered basis that the optimal number actually is 12 The sort of a follow-up to that the court historically has been a loner court in a sense of sending judges out to other circuits um one obvious solution or a potential solution to a to a Caseload issue would be to become a borrower court and allow either District court judges or perhaps senior circuit court judges to sit on the federal circus. Is there any thought given to changing the that basic approach at this point or views on that We discuss it from time to time and the consensus has leaned against it even When it's possible and for many years it wasn't possible to As you say alone and also borrow the rule is a little bit more forgiving now And the year is sliced up into discrete time frames and we could borrow in months that we weren't lending so We could get around that rule, but there's a concern about having Perhaps critical issues of let's say patent doctrine was decided by Judges who never hear these cases or the colleagues of those who pride themselves over time so We haven't Embarked on any program of seeking volunteers from other courts We do lend And we should lend in my view because the other circuits Particularly circuits like the 9th and the 2nd and the 5th and several others for that matter are severely Impacted with caseload vastly heavier than ours with heavy numbers of immigration In criminal cases involving people who are incarcerated And so we regularly lend both active and senior judges to those other courts and I think that's appropriate that those are emergency situations It also in my view is very beneficial to all of our judges who Who can muster the energy to fill their quota. We do have a quota here And also said over time you could say on other circuits because I think it makes us better judges We deal with different kinds of cases. We we have new challenges. We we mix it up with the counterpart judges on the regional circuit So I think there's a lot of benefit in in the current practice. I'd be inclined to think We probably will stay fairly close to what we do now for a while Judge Garza last time we were together I asked you a question about the post argument deliberations and You went through a nice description of that and but I think it's important for the Advocates in general and and for their clients to get a better sense of exactly How quickly the court decides and and and what goes on in that conference because obviously Most of us are never going to be privy to those conversations and any information we can get on it Is extremely valuable In order to answer that question, I think You have to lay the groundwork also from the oral argument point of view right The aspects of oral argument has been pointed out Need to be focused Need to be focused on the issues in which the parties believe that the court below made an error Because as judge beggar pointed out we are A appeals court and the basis of a reversal would have to be based upon a legal error below This is why it's required and necessary for the Parties to focus on the issues of whether or not an error was made below to give the panel at least the opportunity To focus on that issue Now whether the argument is 15 minutes 20 minutes or 30 minutes per side, I think it's totally material I think it's important for The parties to lay out the issues that are necessary For the panel to understand the case Understand where the alleged error was made After oral arguments completed Whether it's two hours or three hours There is an immediate conference by the panel The panel will meet and discuss each case The issues are laid out the most junior member of the panel starts With a discussion The next ranking member of the panel is then Allowed to discuss the issues and finally the most senior member of the panel also Becomes involved in the argument doesn't necessarily follow in that particular line, but for the most part, that's the way it's done There's a straw vote on each case Which is made at that point in time Once the four cases are Discussed and voted upon The senior member of the panel Will essentially divide the writing assignments the authoring assignments for each one of the cases And that is done on the basis of Equating the work Allowing each one of the judges for the most part to make a determination of whether or not the Issues are to be covered In a particular opinion It's not drafted until after all of the issues are outlined and the panel decides which issues to cover Panel also decides whether to make it crack a non-track at that point in time Once the authoring assignments are completed Then the panel dispans to Essentially decide how they're going to be able to handle their particular cases for the next day But what is important is to understand that each one of the judges Does have the opportunity at that point to discuss the issues And we also discuss the issues that are raised in oral argument This is why it's critical for you to at least point out the errors Because those are the times that the Determinations are made right after the oral argument. It's critical The other aspect that you should know is that each case is probably Discussed five ten minutes For the most part So it could take a half hour or 40 minutes 45 minutes Some cases longer than others And there are a number of cases that after the straw boat is taken But don't write up the way the panel originally believed To be the final result So there is also further discussion after the initial conference But for the most part the authoring judge Who is given the assignment Will draft up the opinion circulated to the panel and at that point is The majority has made a determination as to whether or not to accept The panel the authoring judges panel opinion And sometimes what you do point out is that as judge already noted What came in as a two-to-one opinion could change Sometimes the panel opinion is written in such a way that the dissent evaporates Or in the alternative the dissent Might be written in such a manner that the Judge who originally dissented Becomes the author of the judge So there are a bunch of varied and different approaches to the final determination of the panel opinion But it's important to recognize that they are Made the initial straw boat is taken immediately after The oral argument is undertaken by the panel Critical time when the judges do discuss the issues And for the most part it's the first time that the judges have discussed the issues together So from that perspective I think Good strong advocacy is very very important very critical Thanks, the uh, I've been you know enjoying that I've got to end this promptly They're released on time and and we're almost there But I did want to give judge post the opportunity to answer what was the last question which is Are there any real pet peeves you have one thing that you wish lawyers would do differently than they do One piece of advice we can give everybody I think you've all heard it before from my colleagues and it's hard to come up with something new and different I'd just say briefly Presumably every case has its own strengths and its own weaknesses And we're all pretty smart up here and we certainly have smart law clerks You can't hide the weaknesses best off to deal with those as well as the strengths Great on that note. Uh, we we are adjourned. We appreciate the opportunity. I hope you all enjoyed it Tuesday on the c-span networks begins with washington journal and a look at us funds for international family planning Also a senior advisor to secretary rice on iraq's new government And congressman gary ackerman on sanctions against the palestinian authority Washington journal starts with your calls at 7 a.m. Eastern And the house is in a tent to look at agriculture appropriations On c-span 2 the senate continues with the immigration bill final passage is expected by the week's end In the morning on c-span 3 the fdc chairman joins a hearing on gas prices And at 2 p.m. A house subcommittee on federal aid for state drug enforcement programs Next wednesday may 31st through friday june 2nd C-span takes you inside the public