Some Random Thoughts on Good Appellate Practice at the CAFC

I read a lot of briefs this last year while clerking at the CAFC, and developed some pretty unexpected opinions and some that confirmed "conventional wisdom."

First, the quality of briefing, even in signficant cases, is too often abysmal.  I too often saw some bad writing, bad reasoning, bad judgment, and bad research.  Fundamental issues were often overlooked. Smaller points:  don't load up your questions presented ("did the distict court err by ignoring the overwhelming evidence of deceit and foulness that was undisputed including sworn testimony by the Pope…").  Get the standard of review right, and focus on it in your argument.  The court does not decide everything de novo, and that principle does often matter.  The fact that a judge thinks the jury was "wrong" does not matter if the question is substantial evidence, for example.  Cast your arguments in terms of the standard of review!

Second, a lot of people say you should "never" use trial as appellate counsel. I would never say never, but I would say that even if it makes sense to use trial counsel on appeal (economically, or for whatever reason), have someone else with appellate experience read the briefs and moot the lawyers.  The CAFC is not a jury, and sometimes skill sets that do great at trial don't fare so well on appeal.

Third, do not — do not, do not, do not — raise more than you absolutely need to on appeal.  If you are raising more than three or four broad errors, you better have a very good reason to do so.  Why?  First, you don't have space.  Second, think about the message you are sending: the district court got nothing right.  Third, chances are some of those arguments are weak. They will weigh down the better arguments.  They give the other side easy targets.  Don't hand the other side a hammer.

Fourth, at oral argument, cut to the chase.  Don't start with a bunch of hot air.  Don't spend time to castigate opposing counsel or the district court. Explain, dispassionately but effectively, what was wrong and how it warrants appellate relief.  And, know the record.  Moot the argument before hand with people who have read, only, the briefs and appellate record — not those who tried the case. Also, if you sense the panel is done with your argument, especially as appellee, ask if they have any other questions and if not, sit down, shut up, and think about having a nice coffee afterward. You do not need to talk until the red light goes on.  Oh, and when the red light goes on, stop or ask permission to finish your remark. If the red light goes on and the court says "do you have any final words" say two sentences, not twenty.

Fifth, if you won below, think VERY carefully about cross-appeals. You may not be able to raise as an alternate grounds to affirm invalidity, for example, if you won non-infringment.  Think carefully about claim construction.  Again, you probably need an appellate person to help you out, not just trial people, and, more particularly, someone familiar with CAFC appeals.

Sixth, be respectful in the briefs.  I know how hard this is; I was a lawyer for a long time (well, I still am but I was ONLY a lawyer for a long time).  Things get heated.  Judges sometimes seem to favor the other side.  Money gets wasted and clients are unhappy with that. Usually no one wants to be in litigation.  But it does not help your cause to let heat obscure the light. Be respectful.

For what that's worth.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

4 thoughts on “Some Random Thoughts on Good Appellate Practice at the CAFC

  1. 4

    David, thanks.

    I share your views entirely. While I was never a clerk in a real court, I ran Appellate Moot Court for two years in law school. I saw all of the errors you list in the briefs filed, and in the oral arguments.

    Trial attorneys often don’t understand scope of review, like to argue every point, and are very aggressive. All of the above does suggest that trial attorneys may not be the best choice on appeal.

  2. 3

    Anon, that’s a possibility, but if you don’t get the judgment reversed, it’s all lost anyway. So, for example, suppose trial court grants summary judgment of no-anticipation. You appeal, as the accused infringer. Even if you really think 18 pieces of prior art each anticipated, arguing all 18 is going to hurt, not help. But, you probably waive an argument, for remand, if you didn’t argue that #18 did anticipate. But if you throw all 18 at the wall, chances are you won’t get a remand.

    LB, claim charts help enormously in all areas. I don’t know if otherwise I have specific thoughts but I bet I do… they’re just wedged in the back of my brain right now!

  3. 2

    Those comments are very helpful, David. Do you have any thoughts that specifically apply to appeals from the PTAB?

  4. 1

    Excellent suggestions.

    One small question regarding preervation of arguments: if you don’t raise every issue, are you abdicating them without ability to recall?

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