Effective Appellate Advocacy before the Federal Circuit: A Former Law Clerk's Perspective

I first learned to appreciate the difference between effective and ineffective appellate advocacy while clerking for the Federal Circuit. In the hundreds of cases in which I read and analyzed briefs and observed oral argument during my year as a clerk, I saw lawyers who were well-prepared and effective and lawyers who were not. Indeed, I came to realize that the ineffective attorneys often made the same mistakes, (1) and that their mistakes would have been easy to remedy had the lawyers only realized they were making them. To that end, this article reviews some of the common mistakes that attorneys make before the Federal Circuit and provides some guidelines for appellate advocates who wish to avoid them. When possible, I make specific references to public statements of Federal Circuit judges that support these guidelines and practice tips. To the extent that it is relevant to effective appellate advocacy, this article provides background on the Federal Circuit's decisionmaking process, and it also provides concrete suggestions for briefing and oral argument. Some of this advice is unique to the Federal Circuit, but much of it will also be relevant to advocacy before any other court. I. THE FEDERAL CIRCUIT'S DECISIONMAKING PROCESS The Federal Circuit's internal operating procedures are available online, (2) and Chief Judge Markey outlined the court's inner workings years ago in a piece that is still useful today. (3) Any lawyer involved in a case before the Federal Circuit should consider consulting these two resources at the outset. Advocates should consider the following information a supplement to these important sources. After a Federal Circuit appeal is fully briefed, the clerk's office randomly assigns the case a three-judge panel and then distributes the briefs and other case materials to the panel about one month before the oral argument. (4) The judges read the briefs and review the record and relevant law (and have their clerks do the same) prior to the oral argument. (5) The Federal Circuit differs from some other circuits because it is the court's general policy to allow oral argument in many, if not most, of its cases. (6) Counsel typically have fifteen minutes per side in argued cases. The appellant goes first and is allowed to reserve some of that time for rebuttal. The judges, with their clerks' assistance, may prepare questions in advance of the oral argument, but some of the judges' questions may also be prompted by the statements made during the oral argument. After the oral argument, the judges hold a conference to vote on the outcome of the case (starting first with a "straw" vote) and whether to employ a precedential opinion, a nonprecedential opinion, or a judgment of affirmance without opinion under Rule 36. (7) The presiding judge then decides which judge is going to write the opinion. (8) The assigned judge writes the opinion, reviewing the briefs and sometimes the recording of the oral argument. (9) The clerks generally assist with some aspect of the preparation of the written decision. The judge then circulates the opinion to the other two members of the panel with a vote sheet, on which the other members of the panel can either agree with the opinion as written, make comments, or write further opinions. (10) After a precedential decision is approved by the panel, it circulates to the entire court for approximately two weeks, during which other judges can make comments, and then it is reviewed by the court's central legal staff for consistency with the court's body of law before it issues. (11) If the opinion is non-precedential, it circulates only to the panel before issuing. (12) A Rule 36 affirmance does not circulate to the rest of the court and generally issues within a few days of the oral argument. (13) II. THE BRIEFS I try to decide how I'm going to vote before I come into the courtroom. --Judge Michel (14) Without a strong appellate brief, it is going to be hard to win your case. …