04
Jun
ALJ Theodore R. Essex spoke recently to ITC 337 Law Blog.  The answers he has provided here are strictly his own, and do not represent the position of the ITC or any other member of it.

What interested you in becoming an ALJ at the ITC?

There were two factors that interested me in coming to the ITC, the first being geographical.  Having said that, when I saw the opening for a judge at the ITC, I studied the agency, reading its website, including the section on 337, the Commission rules, the CFR sections that applied to the ITC, and it was very clear that the work here was challenging at a number of levels.  I was impressed with the type of hearings that the ITC conducted, and with the length and complexity of the IDs that were produced.  I thought at the time that the work would be interesting and challenging, and so it has been.

How did your prior military experience prepare you for your current job as an ALJ at the ITC?

In my career with the USAF, I worked in a number of fields and areas of law that I believe were superb training for the ITC.  I spent many years as a trial attorney, as a defense and prosecuting attorney in criminal law, worked in international law, and finally tort law.  As a trial attorney, I learned to study cases and know them well, from complex medical issues, to detailed factual determinations.  I spent three years as the chief accident investigator for Air Education and Training Command, studying in detail the systems and human factors in aircraft mishaps.  In each investigation, there are a number of scientific details to study, broken down by systems.  In international law, I worked on the training for the INF Treaty and negotiated SOFA [Status of Forces Agreements] supplements, which involved complex and highly detailed reports and products.   So on a whole, my career involved learning complex and detailed subject areas, and working with evidence and witnesses to produce coherent reports.  I think it was great training for this job.

What is a typical work day like for you as an ALJ at the ITC?

Obviously the days are very different when we are in hearing, but when we are not, the bulk of the time is spent reading the information submitted by counsel, and trying to get orders out the door.  The attorneys that practice in the ITC are prolific, and there is no shortage of filings to get through.

Generally, do you have any practice pointers for attorneys who appear before you at the ITC?  More specifically, are there things you wish lawyers did differently, particularly with respect to presenting sometimes complex technological issues?

I hope I have been clear in getting practice pointers out in other forums, but I am happy to repeat the basics here.  Remember that you have only your reputation and integrity as an attorney to fall back on.  Treat everyone, including witnesses, with respect, unless and until you have proven they do not deserve it.  Be clear and honest in all you do.   One of the most important things that firms and attorneys can do in practicing before the ITC is remember the speed at which we function, and cooperate in getting things done, particularly in discovery.  While there are often legitimate issues that should be brought to the judge, it is frustrating when it appears the parties are unable to work out matters that ought to be worked out with cooperation.

The attorneys that appear in our court are doing a very good job, and I would not presume to tell them how to do things differently.  With regard to the complex technological matters, the attorneys and experts are doing fine, and I don’t know how they could do it differently in most cases.  I think long term we ought to look at a couple of factors.  First, I think we do spend a great deal of time on issues about which there is no real dispute.  Often I will see evidence on matters such as domestic industry, or importation where the actual crucial point of the case is elsewhere.  I would like to see if we can focus more on the disputed matters and do less on issues that will not impact the decision.

What do you enjoy most about being an ALJ at the ITC?

I think the fact that every case has new information, technology and challenges makes it fresh everyday.  I enjoy the people here, and the fact the companies and attorneys are on the cutting edge of industry and law.  I recall in one of my first cases listening to the experts, and thinking how much the education I was getting there would have cost if I had tried to go find it in the market.  I had some of the world’s leading professors and scientists in court to explain the technology to me, and to underline the disputes.  I find that exciting and enjoyable.  Finally, the ITC trial bar is a relatively small community, and I have enjoyed meeting the members at the functions very much.

Can you generally describe the professional interaction among the ALJs at the ITC?

When I arrived here the judges welcomed me warmly, and have helped me very much in finding my feet and learning what I needed to know.   While each judge maintains his independence in decision making, I have found all of them willing to discuss cases and law as questions arise, though we are all relatively active with our own case loads.

How does your current ALJ position at the ITC differ from your prior ALJ position at the Office of Medicare Hearings and Appeals?

Here at the ITC we have far fewer cases, but the complexity of the cases, and the volume of material in each is very high; often exhibits will number in the hundreds and pages in the hundreds of thousands or more.  All the litigants are represented by counsel of the highest caliber, and each side is well represented.  At OMHA, we usually had pro se appellants, and frequently there was only one party in the appeal.  While the cases were less complex, the volume of cases was much higher, and the appellant had a personal stake in the outcome.  Often the first individual that would actually sit in front of them and listen was the ALJ, and the hearing was important to them personally.

You have dedicated your legal career to public service.  For those lawyers who have not worked in the public sector, could you comment on how you see the role of attorneys who work for government entities?

I have been very fortunate in the career positions I have had.  In the military I had a great sense of purpose, as I was able to work with and help the service members who were dedicated to protecting the country and its allies.  I enjoyed working with the men and women in the armed forces very much, and some of the things we accomplished still impress me to this day.  In addition to the service I was able to give to the individuals, working in the government is a trust, and each public servant should try to conduct him or herself with an awareness of that.  I take great pride in some of the things we were able to do over the years for both the US and individuals.  Attorneys that work for the government have an opportunity to do work that impacts society as a whole, and to feel that they are doing something that will help others.

What is the most memorable moment that has occurred at an evidentiary hearing that you presided over (you can be generic if you want to protect identities of the parties involved!)?

So many of the moments were memorable at the time, and have faded it is hard to say.  I recall in one case we had a Lexus with an anti-collision system that CARFAX had reported as having been in three collisions.  I thought the system wasn’t working very well.

If there is one thing that you want our readers to know about the ITC, what is it?

I think it is a terrific place to be right now.  We have been getting some of the most interesting cases in the country, we have great people and I think from the Commissioners to the Staff it is a wonderful place to work.  Right now we are on track for another record number of cases, and we are getting the resources to handle the case load.  I think this is as exciting a place to practice law as there is in the country right now.
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