Advice from the Bench

On May 24th 2016, a panel consisting of Federal Circuit Court of Appeals Judges Kathleen O’Malley, Jimmie Reyna, and Raymond Chen, as well as Minnesota District Court Judge Joan Erickson, offered guidance for practice before the Federal Circuit.  Some of the insight and advice the judges shared is provided below.

Focus on the Issues

Do not pander to your judge by citing a minimally relevant case or opinion just because it was written by that judge.  There is greater persuasive power in citing more recent and relevant cases that support the proposition in question.

– Judge Chen

Do not dodge questions from the panel.  Not only may the panel consider such avoidance disrespectful, but the judge may hold that lack of clarification against your case.

– Judges Reyna and Erickson

In oral arguments, do not fall into the trap of harping on an insignificant detail while leaving a larger principle unaddressed.

– Judge O’Malley

Preserve Your Integrity

Limit attacks against personal credibility.  Many judges are offended to read personal attacks and name calling because it suggests that you think such practices would convince that judge.

– Judges O’Malley and Erickson

Refrain from exaggerations and hyperbole—stretching the truth will make a judge raise eyebrows and scrutinize factual support.  If you stretched the truth, you just lost your credibility.

– Judge Chen

Communicate effectively

Use short, simple sentences that are to the point.  Verbose prose is not persuasive prose.

– Judge O’Malley

It shows a lack of preparation to spell out every nuance in patent law to a judge who has extensive patent experience.

– Judge O’Malley

Maintain Perspective

Remember that there is a panel deciding your case.  A judge may not be asking a question for herself, but in an effort to sway her colleagues your way.  Keep your eye out for softballs.

– Judge Erickson

Consider the case from your adversary’s perspective—a judge will do her best to be impartial and neglecting to consider your opposition’s perspective forces the judge to consider those issues on her own.

– Judge O’Malley