That same judge said something to the effect of "give us something to work with". For the record, if a non-attorney poster on this board could accurately handicap our chances of success before that panel based on the "past performances" of all possible appellate judges, F & R should have done the same. Since the panel makeup wasn't known until the day of the hearing, Singer should have had two scripts ready that morning - one for a Graham-factor-leaning panel and another for a prima facie-leaning panel. Instead he blithely insisted on them seeing it his way and you saw the result.
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