It's relevant in that it demonstrates how easy it is for FUD to be effective against IP stocks during litigation, and specifically CAFC orals. After the orals, self-proclaimed experts were all over Twitter claiming they know how the Fed. Circ. will rule in the Apple vs. VirnetX appeal based on orals alone. And the market ate it up.
Most don't realize that CAFC oral hearings are usually impossible to analyze in terms of which way the panel is going to rule. There is no way to know which judges are playing devil's advocate (coming out strong asking questions in a manner that goes against which way they are "leaning") as opposed to being straight up.
Below are a couple of Law360 articles that provide some color to CAFC orals. I think VRNG investors will find them helpful. Two pertinent snippets:
"Some practitioners believe that the judges have already made up their mind about the merits of the appeal before the oral argument begins. I prefer to think of oral argument as the advocate’s last great chance to persuade."
and...
“It's pretty clear that most of them have made up their minds by the time of argument,” Frey said.
Your 15 Minutes: 5 Tips For Arguing In The Fed. Circ.
Law360, New York (January 13, 2012, 12:56 PM ET) -- Fifteen minutes — that's typically all you get — no more, and no less. The appellant gets to split her time between the opening and rebuttal arguments. The appellee gets only one shot at it. And they each get only 15 minutes.[1] That’s oral argument in the U.S. Court of Appeals for the Federal Circuit — the proving ground for appeals of trial court decisions in patent cases.[2]
The questions start almost from the moment you take the podium and the timer starts counting down. The bench is always hot and often smoking. The judges are razor sharp — they are experts in patent law, and they know the briefs and the record. Sometimes the questions come so fast the judges overlap — but you need to answer each and every one of them.
I've argued many cases in the Federal Circuit, and it never gets old, routine or predictable. Something unexpected always happens. You need to get your point across and hold the panel’s interest. You need to be nimble and adapt to the focus of the panel’s questioning. And you need to do it all in 15 minutes.
Many practitioners can do this persuasively and successfully. They are fun to watch and even more fun to battle. Although oral argument styles can and do differ — sometimes dramatically — there are certain elements of preparation and execution common to the most successful appellate advocates.
In this article, I incorporate some of these common elements into five practice tips for oral advocacy in the Federal Circuit. They have served me well in arguing for both appellants and appellees in patent cases, and I hope you find them both informative and useful to enhance the persuasiveness of your 15 minutes.[3]
1) Know Your Case
Obvious? Common sense? Maybe, but you would be surprised how many attorneys fail to exhaustively prepare for oral argument. Yes, it is true that you can’t argue everything in your 15 minutes, and you should select certain issues for your presentation, while standing on your briefs for the others. However, the scope of your preparation is a different matter.
The argument will typically take place many months after the last brief is filed. The familiarity you had with the subject matter during the briefing process will wane due to the passage of time, not to mention your shifted focus to new projects and cases. In your preparation, you may be tempted to focus only on what you consider to be your strongest argument, to the exclusion of others.
You may also be tempted to rely on another attorney’s written summary of the key arguments and cases, rather than put the work in yourself. And, you may be tempted not to read all the cases cited by the parties, simply because there are so many of them.
However, when you do — or fail to do — any of these things, you compromise your ability to be nimble in the courtroom and utilize your time efficiently. One or more of the judges may have a different idea than you do of what the most important issue is, and you need to be able to go wherever they lead you and speak with authority. You can only do this by having a thorough command of all the parties’ arguments, the documents in the joint appendix, and the case law cited in the briefs, and by updating your research for relevant new decisions before walking into court.
If you do not know your case cold, and if you are not able to quickly find key passages from the patent and another important documents in the joint appendix, you may be stumbling around searching for an answer to an unanticipated question and eat up argument time in the process. You simply cannot be “over-prepared” when arguing in the Federal Circuit.[4]
2) Develop An Opening Theme: “The Grabber”
On more than one occasion, I’ve seen an advocate begin his argument by introducing himself, his law firm and also possibly his second-in-command at counsel table. Professional, mannerly, respectful to the court? Yes, yes and yes, but also unnecessary and boring — not to mention that it eats up precious argument time. The panel knows who you are and where you came from — after all, your name and your firm’s name are on the briefs you filed.
Yours is not the only case on the court’s very busy docket, and your goal should be to grab the panel’s attention from the beginning. You can do this by starting out with a theme or “grabber” that crystallizes where the district court went wrong if you are the appellant, and reenforces how the district court got it right if you are the appellee.
Something like this can work for the appellant: “In construing the term “base” to mean _____, the district court improperly read a preferred embodiment of the XYZ patent into the asserted claims. The district court then relied on this erroneous claim construction to grant the defendant’s motion for summary judgment of noninfringement.”
If you are the appellee: “The district court correctly construed the term “base.” The court’s construction was consistent with the patent specification, which describes a base having a _____ as part of the invention itself. It was also consistent with the statements made by the inventor to the U.S. Patent and Trademark Office to distinguish the base of the prior art ABC patent.”
Although I am not a fan of writing out or memorizing arguments, for reasons discussed below, here’s one situation where you may want to do it — write out, memorize and practice your “grabber.” By doing this, you can start the argument out strong, and with a fluidity that will conserve — rather than waste — argument time. Also, by beginning with something you know for sure, you can relieve some of the pre-argument jitters that even seasoned practitioners feel.
3) Get There Early: Muse, Tempo, Temperament
Your argument will be held in either the 10 a.m. or 2 p.m. session, and you can find out which session by consulting the Federal Circuit’s website. The website will also tell you how many arguments precede yours, if any. However, the website will not tell who which judges will be on your panel. You find that out when you check in at the clerk’s office on argument day.
By getting to the court early, you can accomplish several things that will add to the persuasiveness of your 15 minutes of argument. First, you can get the feel of the courtroom, and have some quiet time to reflect, focus your thoughts and channel your muses. Often, regular panel arguments are held in the majestic en banc courtroom, which can be a little intimidating for inexperienced advocates. Getting the feel of the room can go a long way toward easing pre-argument jitters and help you focus on the task at hand.
Second, you can watch the arguments that precede yours and see the panel in action. Which judge(s) is the most active and taking the lead in questioning? How hot is the bench, and who appears to be particularly impatient with nonresponsive attorneys? How are the attorneys doing? Have they succeeded in keeping the panel’s attention, and if so, how? This is all very useful information, because it also helps ease pre-argument jitters (at least you now know what may be coming), and enables you to make last minute adjustments to ensure that you start out strong and persuade at a high level.[5]
4) Answer The Question, Then Pivot
Students of appellate advocacy learn early on that the first rule is to always answer the judge’s question. It’s a good rule, especially in the Federal Circuit. Although the judges are experts in the patent law, they have important and difficult questions to decide every day, and one of the purposes of oral argument is for the attorneys to help them make the right decisions.
As a result, the questions may take you to places you did not expect, and it could be for a variety of reasons — a broader policy reason that may affect other cases, an argument you didn’t highlight but which the panel thinks is important to the disposition of the appeal, etc. That’s one of the reasons you need to know your briefs, the parties’ case law and the record cold.
In addition, little raises judicial ire more than an attorney who evades or otherwise fails to respond to a judge’s question. Your credibility is on the line when you are arguing. You want to leave the courtroom with your credibility in tact. Failing to answer the question asked — no matter how painful you may think it is — may adversely affect the panel’s viewpoint of you and your client’s case.
And, because the judge will keep on the topic until you answer the question, you only eat up valuable argument time by evading. The more productive approach is to answer the judge’s question first, and then pivot back to where you were or where you wanted to go. The added bonus here is that the panel may be more attentive and receptive to what you have to say “post-pivot” if you give them the respect and courtesy of answering their question first.
5) Move, Animate, Resonate
Many of the Federal Circuit judges like to approach oral argument with a sense of style, flair and effervescence. They are people just like us, and bring their own unique personalities to the courtroom. Why not return the favor? Otherwise, if you rely on reading your argument or parroting a memorized script, you run the risk that the panel will never become engaged.
Also, because the panels are normally very active, you will be too busy answering questions to rely on a script. If you try, you will eat up time trying to refocus on your script after a round of questioning, the result being that your presentation will become disjointed and unfocused. Too much reliance upon a script in fact makes you look unprepared, and failing to look at the judges when you are speaking because you are looking down at your script can appear disrespectful.
Constantly looking down at your script may also prevent you from quickly and effectively handling a snap question from one of the judges, and picking up on nonverbal signals indicating a panel member’s agreement, disagreement, confusion, etc., with what you are saying. You need to be aware of these nonverbal signals so you can respond accordingly.
Finally, try incorporating some of the tried and true techniques of effective communication to give your presentation more life — such as modulating your voice, shifting position at the podium to look at each judge individually when speaking, and using appropriate hand gestures to emphasize a point.
Remember, you have 15 minutes to make your point, and you want to do all you can in both preparation and execution to make your arguments resonate. The signals you send through verbal and nonverbal communication technique at oral argument will inform the panel’s impression of both you, and your client’s case. Your goal is to be an engaging, credible and persuasive advocate. It is difficult to “bring back” a judge who perceives you as inaccurate, unprepared or evasive. And, being any of those things will only ensure that precious argument time will be wasted.
As either appellant or appellee, incorporating the approaches discussed in this article will help you execute an oral argument plan in a more efficient and engaging way that will maximize the persuasiveness of your 15 minutes.
--By Michael A. Nicodema, Greenberg Traurig LLP
Michael Nicodema is a shareholder in Greenberg Traurig's New York and New Jersey offices. He is a trial attorney and appellate attorney in the firm's litigation, intellectual property litigation and appellate practice groups.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media, publisher of Law360. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] It should be noted that en banc arguments typically far exceed 15 minutes, and the Federal Circuit judges are accommodating in granting counsel more time even during panel arguments, where the questioning has been particularly time consuming.
[2] The Federal Circuit will also hear patent-related appeals from decisions of the International Trade Commission and the USPTO Board of Patent Appeals and Interferences, and trademark-related appeals from decisions of the USPTO Trademark Trial and Appeal Board.
[3] Some practitioners believe that the judges have already made up their mind about the merits of the appeal before the oral argument begins. I prefer to think of oral argument as the advocate’s last great chance to persuade.
[4] To avoid confusion, and to keep the arguments focused, most Federal Circuit judges discourage counsel from “splitting” their argument between two attorneys; even when there is more than one appellant or appellee involved in the appeal.
[5] Mastering the parties’ case law and updating your research as part of your preparation technique will also help you determine if one of the judges on your panel was involved in an important decision being relied upon by you or your adversary. This information can be invaluable in helping you readjust and adapt on the fly “pre-argument.”
________________________________________________________________
Do's And Don'ts When Arguing Before The Justices
By Christine Caulfield
Law360, New York (September 18, 2009, 12:46 PM ET) -- As the U.S. Supreme Court gets set to kick off another term, Law360 talked to several top appellate practitioners for tips on preparing and presenting oral argument before the justices. Think a moving, impassioned speech will sway them? Think again. How about a joke to break the ice? What, are you Jerry Seinfeld?
The Preparation, or Questions, Questions, Questions
The art of oral advocacy before today's Supreme Court is the art of thinking quickly on your feet and anticipating the justices' concerns, experts said. Experienced advocates don't prepare for argument by crafting the perfect summary of their brief, but by compiling an exhaustive list of questions the brief poses.
“Every conceivable question the justices might have I jot down,” said Mayer Brown LLP's Andy Frey, who has argued 65 cases before the court — more than any other lawyer currently in private practice. “At the end I will have 10 to 15 pages of questions.”
In voting to grant a writ of certiorari, the justices have already read the record; discussed the case with their law clerks; and, most of the time, have arrived at their decision before you reach the podium, Frey said.
But they will have queries, lots of them, and if you can anticipate the questions and proffer the right answers in the 30 minutes allotted, you might just be able to influence them, he said.
“It's pretty clear that most of them have made up their minds by the time of argument,” Frey said. “The brief is probably more influential, but if you can provide good answers, you have a shot.”
The key to knowing what questions might come up is to remember the things that gnawed at you the first time you picked up the case, said Frey's colleague, Mayer Brown special counsel Charles Rothfeld, who has argued before the court 24 times.
“The things that bother you are likely to bother the justices,” Rothfeld said. “Psychologically, it can be difficult to look for the weaknesses in your own case, but chances are the justices will have no trouble.”
Rothfeld tasks every lawyer who has worked on the case to look for holes in their side's argument and write a list of all conceivable questions, both factual and hypothetical, he said.
“It's sort of like preparing for a college exam,” he said. “You study all the questions, and hope that you don't miss the one that's going to be on the exam.”
Next up: The Trial Run
So, you've typed up pages and pages of possible questions, and you've considered your answers, now to test them out.
While Frey said he favored an informal, roundtable session with colleagues, other appellate lawyers rely on moot court to try out their answers, sharpen their argument and boil down the most important points.
“I usually do two or three moot courts before the oral argument,” said Paul Wolfson, a member of the appellate and Supreme Court litigation practice group at WilmerHale LLP.
“I've never had an oral argument that was as difficult as my moot court. And only once or twice have I had an argument where I've been asked a question that wasn't asked in moot court,” said Wolfson, who has argued 19 Supreme Court cases.
Thomas Hungar, co-chair of Gibson Dunn & Crutcher LLP's appellate and constitutional law practice, also favors the moot court, drawing on a mix of colleagues to people the panel.
“I try to have people who know the case, know its skeletons, but also people who are fresh to the case, because that's how the justices come to it,” Hungar said. “No matter how creative and knowledgeable you think you are, you can't come up with all the insight of an experienced panel at moot court.”
The value of moot court, Rothfeld said, was best exemplified by the experience of pro se plaintiff Michael Newdow, who argued before the court in 2004 as a parent of an elementary school student that the words “under God” in the pledge of allegiance violated the Establishment Clause of the First Amendment.
“He did 11 moot courts, and when he started out he wasn't any good, but when he was done, he gave a very effective argument. It was remarkable,” Rothfeld said.
Know the Court
Don't wait until you're in the hot seat to see the inside of the Supreme Court for the first time, experts said. Observe the court in action beforehand, to watch the flow of the arguments and get a feel for the dynamics in the room.
“You need to be comfortable, to see the mechanics of the court, understand the lighting system, so that when you finally get up there you're familiar with how things work,” Frey said.
Knowing the ideological bent of the nine individuals who make up the court can also be helpful, said Morrison & Foerster LLP partner Deanne Maynard, chair of the firm's appellate and Supreme Court practice.
“Being attuned to which justices wrote, joined or didn't join the key opinions on which you rely is all part of good preparation,” Maynard said. “It might be that you can tailor your answers depending on who it is asking the question.”
The Presentation
Gone are the days of the rousing stem-winder speech, experts said. These days oral advocates are lucky to get five minutes to present their arguments before the justices interrupt.
“The justices are extremely active and often jump in immediately, so you may not have a chance to say anything at all,” Rothfeld said.
The trick, Hungar said, is to order your arguments in such a way as to avoid interruption for as long as possible.
“The key to oral advocacy at the court is to be as concise as possible in getting across your strongest arguments in a way that hopefully doesn't provoke immediate questions,” he said. “The important thing is to get out as much as possible before the questions.”
One issue to consider when ordering the arguments is when to present the weaker, alternative position — if you have one, Maynard said.
“If you decide to focus first on your preferred argument, you may never get to your backup argument,” she said. “But if you decide to present both right off the bat, you risk having all the questions centered on your second argument. It's a judgment call, and you have to decide based on each case.”
While some lawyers like to have their entire argument scripted, the attorneys Law360 spoke to preferred to come to the podium with just an outline of their legal position.
“One thing you don't want to do is stand and read out your argument to the justices, and the danger of writing out a script is that you can fall into that reading” said Maynard, who usually prepares an outline of her three main points. “If you're not focused on a script, it's more conversational, and the best arguments are conversations with you and the court.”
The outline, according to Wolfson, should contain arguments that stand on their own and can be slipped in when there is a break in the questions.
“They should be arguments as to why the court should rule in your favor. Why you should win, not just how you should win,” he said.
Answering the Questions
Each of the nine justices has his or her own approach to asking questions, experts said.
Justice Stephen Breyer is renowned for asking long, complicated and often entertaining hypothetical questions; while Justice John Paul Stevens will interject with a seemingly innocuous question that can lead you down a fatal path, Hungar said.
But every question, no matter how tricky, must be answered, he said.
“You don't want to be seen dodging and weaving. They are so quick to discern inconsistencies in your argument, and they draw them out with their questions,” Hungar said.
Questions that send the justices down an unwanted tangent must also be answered, he said, but the trick is to nimbly steer the argument back to where you want it to go.
“You need to answer the question enough that they feel you're not giving them short shrift, but you can try to say something that gently suggests that the question isn't really at the heart of the case,” Hungar said.
The best answers, Frey said, are answers that leave the justices feeling comfortable with the legal position you are advocating.
“This is particularly important in the Supreme Court, where the rules are adopted nationwide. The justices have to think a lot about the implications of your position, and you want to make them feel comfortable that the result you're espousing is a result that the legal system can live with,” he said.
Managing Your Time
The court gives each side 30 minutes to present an oral argument, but permits the petitioner to save a portion of that time for rebuttal at the end of the respondents' alloted time. All the practitioners Law360 spoke to said it was important to leave at least five minutes for rebuttal, as a check on your adversary.
“It's crucial not to run out of time in your opening statement. Having the last word is very effective, and you want to have the opportunity to address the concerns the justices had about the other side's argument,” Rothfeld said. “Also, if you run out of time, your opponent can take liberties.”
Courtroom Etiquette
Oral argument is recorded so the first rule of courtroom etiquette is to stand at the podium and talk into the microphone.
“Sitting relatively still through your adversary's argument, however disagreeable, is also advisable,” Frey said.
Maintaining eye contact with the justices during your argument is important too, and, when answering a question, address the justice who posed it, he said.
If your answer is cut short by another question, answer that question then return to the first one, if you can, Frey said.
Maintaining your cool is also critical, Hungar said.
“It's important not to get angry or adopt a professorial, lecturing tone with the court. That tends not to play well,” he said.
Theatrical presentations are a no-no, too, Rothfeld said.
“The court doesn't like jury-style arguments that appeal to the emotions. It likes sedate and to-the-point presentations, and direct responses,” he said.
And the consensus on humor? Best avoided, experts said.
“It's unwise,” Hungar said. “Occasionally, it's been done successfully, but more often than not it falls flat. Better to let the justices tell the jokes, and you stay the straight man or woman.”
