Hot in AlexandriaNot quite hot.  Not quite the summertime, either.  But close enough to either — and especially fun, not only because we love what we do — especially when we do it in court — but because we got to do it from the cool comfort of a Goetz Fitzpatrick conference room high atop (not quite that, either, but … 31 stories is something) fabulous One Penn Plaza!

From up here, you can almost see the TTAB!
From up here, you can almost see the TTAB!

What on earth am I talking about?

TTAB oral argument by video!  On a hot pre-summer day like today, with all due respect, who needs to schlep to Alexandria from Manhattan, even if you do work right above Penn Station?  Not me, if I can help it.

If you haven’t had the pleasure yet, let me give you a couple of tips:

  • You will need a video conferencing client called Cisco Jabber Video for Telepresence.  (Branding, anyone?)  It is not intuitively obvious how to get this onto your computer, however, and yet it is quite easy as long as you don’t leave it to Cisco.  If you do, they will try to sell you all kinds of … services, I guess.  Through … resellers, I think.  They will call you back in 4-5 days.  Probably with a PowerPoint.  Alternatively, if, like me, you can’t believe that this should be all that different from downloading Skype, you’ll find your way to a link like this one.  Turns out it’s not all that different from downloading Skype.
  • Don’t wait until the last second to do this.  Setup of the program is very fast but the TTAB administrator will want to check your connection and compatibility, etc., in advance.  As it happened, this was a wise move indeed.  Because when we tried to check mine, we failed.  Well, not we, unless you mean we, the American people.  Turned out we were good to go in Gotham, but there was agita in Alexandria.  (“Turns out we were running encryption and you weren’t.” “Well, even if I were, I’d need the key for yours anyway, right?” “Yeah, I guess you’re right!”)
  • Make sure you’ve got a darned fast Internet connection, obviously.
  • You kind of have to rise when the TTAB judges enter, which is a tad awkward since your camera at that moment is going to point right into your hips, or something, depending on your height, I guess.  But no one is looking then, and it appears that everyone is find with you sitting down during argument; if you don’t, you’ll look even sillier, I think, and you’ll start wanting to set up a lectern, and … just forget it!  Still, this consideration is why you will want to wear your court suit to oral argument just as you would in person.  All of it.

The more fundamental question is whether this is a such a good idea, lawyering-wise.  Do you really want to give up the factor of physical presence in the courtroom, even before an appellate panel (as opposed to, for example, a situation where witnesses have to be examined)?  That is not an insignificant factor.  But the cost of sending you to Alexandria from Manhattan, much less from Michigan or Menlo Park, might be a factor for your client.  No matter how you get there, we’re talking about a lot of billable hours for just one hour of pure juridicial fun.

Likelihood of Confusion BlogMy conclusion is that it’s probably worth giving up being there — if you’re an experienced and, well, good oral advocate, and maybe have some experience with webcams too.

How do you know, empirically, if you’re good?  Well, I can tell you how you might determine that you’re not:  Chances are if you’re not, you won’t associate appellate argument with the word “fun.”  If that’s you, video argument it could be a very disorienting experience, preventing you from making your best presentation and perhaps amounting to too much of a compromise in terms of “presence.”

The whole set-up was a present for me, I’ll tell you that.  Too hot in Alexandria in mid-June already!  And too expensive to shuttle down there for oral argument, if that can at all be avoided.  Turns out it can.  I wonder when the Eastern District of New York will achieve similar enlightenment?  I’d still rather commute to Virginia from Midtown for an hour of oral argument than drive from here on the Long Island Expressway for a ten-minute status conference in Central Islip.  And I’m not the only one.


By Ron Coleman

I write this blog.