In 5^th Circuit, Distance No Deterrent in Case Disposition

Frequently on Thursday afternoons, three judges in the Fifth Circuit gather to dispose of cases that aren't scheduled to be heard orally. They will consider the cases' various merits, raise questions, and generally have a face-to-face, back-and-forth discussion. Not unusual. Most circuits have a category of cases in which, for a number of reasons, oral arguments will not be heard, and that are disposed of on the basis of the record and briefs. And it is usual judicial practice for judges to gather to discuss cases. Except that in this in- stance, the three judges are sitting in their respective chambers in Dallas, Texas; Jackson, Mississippi; and New Orleans, Louisiana.

Distance is no obstacle for Judges Patrick E. Higginbotham, Jacques L. Wiener, Jr. and Rhesa H. Barksdale. Each of the judges has in his chambers a video-camera and a television monitor. For the videoconference, the three judges sit down, flip on their video-cameras and monitors, and get down to business. The judges see each other on split screens.

"We usually bring between 6 and 16 cases to the table," said Higginbotham. "By Wednesday afternoon all of us have the cases to be discussed in hand. Each panel member is the initiating judge on one-third of the cases, and the initiating judge gets the full record while the other two panel members see the briefs and record excerpts only." Of course, if the other two judges want parts of the record, portions can easily be faxed or e-mailed to them. Previously, the cases were shipped from cham- ber to chamber, with little or no interaction among judges.

The equipment for the judges' videoconferencing session, now in its prototype stage, was funded by the Administrative Office. Courtroom technology initiatives such as this are endorsed by the Judicial Conference.

Currently, more than 200 federal court sites are equipped with video-conferencing capabilities that are used in pretrial, civil, and criminal proceedings; prisoner matters; sentencing; settlement conferences; witness appearances in trials; and bankruptcy hearings. Appellate courts have used video-conferencing for oral arguments. Courts also have used videocon-ferencing to conduct administrative meetings and training sessions between divisional offices and other remote court locations. The Fifth Circuit's use of videoconfer-encing is the latest addition to the varied initiatives.

And what are the advantages to the judges of videoconferencing over, for example, a long telephone call? "It's a chance for us to talk," said Higginbotham, "but my impression is that we're less reluctant to disagree or offer comments when it is face-to-face communication. The whole process brings discipline that ensures collegial discussion—and moves cases."

Moving cases is key. Last fiscal year, 8,253 appeals were filed in the Fifth Circuit, for a total of 1,456 actions per panel. The national average per panel is 983.

Judge Patrick E. Higginbotham, from his chambers in Dallas, Texas, videoconferences with Judges Rhesa H. Backsdale in Jackson, Mississippi, and Judge Jacques Wiener in New Orleans, Louisiana.

Wiener agrees that the video-conferencing program shows a lot of promise. "Compared to the prior screening system, one of the main improvements is that video-conferencing helps us give more attention to these cases. It also could be helpful for handling administrative orders, mandamus cases, and stays that are now handled by phone conference or round robin," Wiener said. He likes video-conferencing because it injects what he calls the "missing ingredient." "With video," he said, "it's what you might get sitting across the desk from someone. It's much closer to `in-person' than a telephone call."

After the cases have been discussed, the initiating judge sends the opinions to New Orleans where they are filed. The practical consequence is that the videoconferencing sessions may help clear the panel's summary calendar of a particular type of case known informally as a NOA, or "no oral argument." These are usually pro se cases and sufficiently complicated not to be summary cases.

"Previously, the Fifth Circuit's oral argument panel would take up NOAs after all the oral arguments were heard," said Higginbotham. "Our goal has been to send fewer NOA cases to the calendar, so more time could be spent hearing oral arguments. Video-conferencing allows us to discuss the NOAs separately, while giving them a level of discussion for which there may not have been time before."

Still videoconferencing isn't perfect; it can be clumsy and time-consuming. Barksdale sees the current prototype program as an opportunity to improve procedures. "It's way too early to tell," he cautions. "This is the time to see the negatives and positives and perfect the process. We're looking for ways to improve our deliberations. Does videoconferencing do that? Or can other technology do as good or a better job"

Wiener notes that it has taken them some time to become accustomed to videoconferencing their discussions. "We tend to shout less than we did in the beginning," he said, "as we get the hang of speaking into a table microphone." Wiener says that, because of the slight time-delay inherent in videoconferencing, they tend to cut each other off in mid-sentence, and Higginbotham's similar criticism is their inability to talk over each other. "Although, I'm not sure that's a flaw," he admits. The judges also point to the adjustments required by judges and staff— adjustments that may include more staff work and more of a judge's time in preparation and review. In addition, all the judges' secretaries had to be trained to run the cameras and monitors.

Busy schedules also make demands. "Given the amount of time each judge must be out of chambers for other matters, such as commit- tee meetings, monthly oral arguments, en banc and special panel hearings," said Wiener, "we've encountered some difficulty keeping to our default schedule of every Thursday afternoon. However, we've demonstrated cooperative flexibility in rescheduling, sometimes skipping a week and doubling up the caseload for the following videoconference."

Higginbotham, who bought his own personal computer when the technology was rare in the federal Judiciary, believes that as the technology improves it should get easier to use. "Videoconferencing comes on the back of what has been fairly rapid change for most people. I look on it as a device that facilitates direct collegial discussion on files that wouldn't receive that type of attention," he said.