Earlier this month, members of the Stoel Rives Patent Law and Patent Litigation Teams played leadership roles in hosting the United States Court of Appeals for the Federal Circuit as the court visited Oregon as its 2011 destination to sit outside of its home base in Washington D.C. A record number of judges – eight – traveled with the court to sit in six panels in Portland, Salem and Eugene.
On Wednesday, October 5, volunteer lawyers, including Stoel Rives Attorney Nathan C. Brunette (former Federal Circuit Law Clerk), gave case briefings to introduce to public observers the cases argued before the court that day in Portland. Later that afternoon, all eight judges participated in a CLE panel discussion about the court and appellate advocacy. The panel was moderated by Stoel Rives Partner Matthew C. Phillips (former Federal Circuit Law Clerk).
The organization of this event was a collaborative effort by the Oregon Patent Law Association, Oregon State Bar Intellectual Property Section, Federal Circuit Bar Association and the Oregon Chapter of the Federal Bar Association.
In case you missed it (or as a handy summary if you attended), below is a list of key take-aways drawn from that panel discussion.
Win your appeal with a strong brief.
- An appellant needs to carefully select a small number of issues to raise on appeal (e.g., no more than two issues according to Chief Judge Rader).
- You lose credibility whenever your brief makes a factual or legal assertion that is not clearly and directly supported by the record or legal authority.
- Edit and proofread your briefs meticulously to eliminate all errors and unnecessary content.
- A well-written "Summary of Argument" section goes a long way toward communicating with the judges who decide your appeal.
- Write your brief to persuade the court, not to please your client; inflammatory rhetoric that makes your client smile only irritates your decision makers.
- Limit designations of confidential information.
- The court welcomes well-written and well-coordinated briefs from amici curiae who provide new information or perspectives.
Do not skimp on preparation for oral argument.
- Come to oral argument prepared to engage in a conversation – not a confrontation – with the judges.
- Do not evade questions from the bench.
- Anticipate every question that could reasonably be asked about the appeal and formulate good answers to those questions and all reasonable follow-up questions your answers may prompt.
- Have complete knowledge of the record at oral argument; ignorance of the record detracts from your credibility.
- Avoid visual aids at oral argument; it is better to incorporate graphics into your brief and refer to them as needed during oral argument.
- Avoid emotional appeals and flashy showmanship before the court of appeals; successful advocates reflect dispassionate intellect.