By Dani Kass

Law360 (April 14, 2021, 8:33 PM EDT ) A federal judge in Dallas said Wednesday it was "shocking" how some attorneys have dressed for remote court hearings and how they have not treated the proceedings with the same respect they do in-person hearings.

Speaking at an American Bar Association Section of Intellectual Property Law conference, U.S. District Judge Barbara M.G. Lynn said she had to issue a standing order last month unlike any she'd issued before. 

"I had to issue a standing order for our court telling lawyers that baseball caps, whether turned the right way or the wrong way, and T-shirts were not the appropriate attire for a court proceeding conducted remotely," she said. "It was shocking to me that people felt at liberty to show up like a slob, to put it bluntly. Or, alternatively, to show up for a hearing in their bedroom with their unmade bed in the background or with lighting that looked like a broadcast of 'The Blair Witch Project.'"

The Northern District of Texas judge was on a virtual panel alongside leaders at the U.S. International Trade Commission and Patent Trial and Appeal Board. Their conversation ranged from pandemic litigation to how much they take each other's opinions into account when cases overlap.

The PTAB's deputy chief judge, Jacqueline Bonilla, agreed that proper dress and lighting are important, although she said she hadn't faced the same issues as Judge Lynn.

Judge Bonilla's concerns about remote proceedings were tied more to making sure internet connections remain strong and encouraging attorneys to practice ahead of time and go into their offices if their home internet is unreliable. But when there is an issue, she said the judges understand and want attorneys to not get fully thrown off by any breaks in arguments.

"We understand that and we're okay with it," she said. "Try not to let it affect your flow. Be ready for that to happen. We're going to let you make your argument."

At the ITC, Administrative Law Judge Cameron Elliott said he's a big fan of attorneys using headphones with microphones or headsets.

He added that post-pandemic, some judges are considering allowing remote proceedings to stay. Judge Elliott in particular, though, said he'd be more likely to limit future remote hearings to things like claim construction, not evidentiary hearings.

Judge Bonilla said the PTAB will probably continue allowing virtual proceedings when attorneys want it and that it is likely to keep a call-in line for the public to listen in when hearings are in person.

Judge Lynn has already started having jury trials again, but all in criminal cases. She raised concerns that if attorneys in her district don't start embracing virtual civil jury trials, they'll be waiting a long time for trial.

"When I talk to trial lawyers about this, they just cringe about the notion of doing a jury trial remotely, but you have to accept the reality that when we get back to up to speed, we federal district courts are going to be flooded with our back up in the criminal cases," she said. "My fear is that even if I want to, and I'm not in a criminal trial, I won't have the resources to conduct a civil trial until we get rid of this back up."

Diamond McCarthy LLP partner Matthew Blackburn, who moderated the panel, asked the judges how they view each other's opinions in overlapping litigation, whether it's about infringement, validity, claim construction or other debates.

"If I'm going to read an opinion by Judge Elliott or an opinion by Judge Bonilla that relates to a matter that I am working on, I am going to be very influenced by the fact that two brilliant people who I respect have weighed in on the subject," the Texas judge said. "Their decisions are not binding on me, but they're smart, they're well experienced, they know what they're talking about, and to me it is extremely helpful to find another person who has considered the issues that I've considered."

Judge Bonilla likewise said district court opinions are "very often persuasive," and she urged parties to make the PTAB aware of them as soon as the opinions are out.

"Absent a compelling reason to go otherwise, we often will not," the PTAB judge said.

Judge Elliott likewise said he takes rulings from other forums "very seriously."

"I don't always agree, but certainly they're a starting point for thinking about these issues," he said.

Judge Lynn added that she doesn't view the decisions of administrative judges any differently than those of fellow Article III judges whose opinions aren't binding on her, especially given how much more patent work they do than her.

The Texas judge also gave a nugget of advice for attorneys in oral arguments — stop treating judges' questions like an annoyance and answer them.

"Having prepared remarks and not varying from them because the judge is annoying you with questions is just the height of foolishness," she said. "Questions from the person before whom you are arguing are a gift."

--Editing by Gemma Horowitz.

Correction: An earlier version of this story misidentified the moderator. The error has been corrected.

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