Stinging Oral Arguments from Chief Judge Moore

Chief Judge Moore does not mince words — especially when she senses that a party is attempting to mislead her as to the record.  I transcribed the following from recent oral arguments in Shure Incorporated v. ClearOne, Inc.  This is a discussion between Chief Judge Moore and ClearOne’s attorney Christina V. Rayburn — discussing whether Shure’s briefing was frivolous.

Chief Judge Moore: Did you file a motion asking us to contemplate whether the brief as written [by Shure] was frivolous . . . given the clear inconsistencies between the brief and [Shure’s] statements to the district court?

Ms. Rayburn: We seriously considered it, your honor, but we chose not to.

Chief Judge Moore: Well, you can always do it after arguments.

Ms. Rayburn: Thank you your honor.

[Oral Arg Recording]




18 thoughts on “Stinging Oral Arguments from Chief Judge Moore

  1. 7

    Quick turn-around between oral argument and decision on this one. As one might have inferred from the oral argument, the appeal was unanimously dismissed in a quick, three-page (non-precedential) decision this morning.

  2. 5

    Any due process concerns with a judge saying at the beginning of oral argument “Counsel, if you don’t convince me of X, you aren’t going to get my vote.” Smacks of premature decision making by that judge.

    1. 5.1

      I don’t see that as an issue – presuming of course that the item that ‘needs convincing’ supports a non-vote overall.

      1. 5.1.1

        I agree. Also, the Federal Circuit decides lots of appeals without any oral argument whatsoever. The “due process” “opportunity to be heard” is in the briefs, and not necessarily just the oral argument. If anything, counsel might appreciate hearing this up front in the oral argument so they can focus on this issue and try to convince the judge.

        This seems similar to the district judges who announce their preliminary claim constructions at the start of the Markman hearing – the arguing parties then know how to focus their arguments.

    2. 5.2

      Not really any issues. It does illustrate how arrogant and rude the CAFC judges are.

      I listened to this oral arguments. I didn’t really think they were stinging.

      It seemed more that Shure’s position was inconsistent with the facts and it seemed to be exasperating the judges that Shure’s counsel wouldn’t admit it.

    3. 5.3

      Any due process concerns with a judge saying at the beginning of oral argument “Counsel, if you don’t convince me of X, you aren’t going to get my vote.” Smacks of premature decision making by that judge.
      Meh. The judge already has a very good idea as to where they are going to come out prior to oral argument. I forget where I read this, but I think someone once wrote that a judge changes his/her mind less than 10% after oral arguments.

      If you haven’t won with your brief, it is unlikely you’ll be able to win on oral arguments. Maybe your brief wasn’t clear as it needed to be on an important point and you were able to clear up that point during oral arguments. Other than that, your opportunities to change a judge’s opinion are very limited.

      Actually, now that I re-read your hypothetical, I would far rather have the judge say “if you don’t convince me of X, you aren’t going to get my vote” then not say anything at all. At least you know what is the key point to address and you have an opportunity to focus your arguments on that and that alone. I’ve listened to far too many oral arguments that must have bored the judges to tears because they rehash uncontroversial yet inconsequential points.

      I would be more concerned about judges going into an oral argument not caring about either the briefs or oral argument because they’ve already determined, after seeing the issue presented (e.g., 35 USC 101), how they are going to rule. I have seen that happen too.

      1. 5.4.1

        It depends what “X” is. If “X” is the ultimate question on appeal, eg. non-obviousness, then yes. But, why would a judge ever feel the need to make that statement during oral argument? If, on the other hand, “X” is a factor in a multi-factor analysis, eg. commercial success in the non-obviousness analysis, then no. Commercial success is just one factor and one can satisfy the burden of persuasion by convincing the judge of other factors — assuming the judge is receptive to other arguments and has not predetermined her conclusion before oral argument began.


          [A]ssuming the judge… has not predetermined her conclusion before oral argument began.

          Why should the judge not have reached a conclusion before oral argument has begun? By the time oral arguments arrive, the judge has heard from both sides, studied the record, and had time to reflect on the relevant issues. It seems both fair and reasonable to me that a prudent judge would have a conclusion fairly in mind by that stage in the appeal.


            I think a judge has a responsibility to maintain an open mind throughout the entirety of the proceedings and not to prejudge any issue until all the arguments have been heard.

            “Minnesota Rule of Criminal Procedure 26.03, subd. 13(3), provides that “[n]o judge shall preside over a trial or other proceeding if that judge is disqualified under the Code of Judicial Conduct.” Canon 3D(1) of the Code provides that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”[3] Canon 4F provides, “`[i]mpartiality’ or `impartial’ denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.”

            State v. Schlienz, 774 N.W.2d 361, 366 (Minn. 2009).

            On the record before us, it is not clear that the judge had not prejudged the merits of Schlienz’s expected motion to withdraw his guilty plea or that he maintained an open mind when hearing Schlienz’s motion once made. The judge’s statements benefited the State by giving the State a roadmap for responding to the expected plea-withdrawal motion. It is impossible to know whether the State would have objected to the plea-withdrawal motion or would have argued prejudice in the way that it did absent the judge’s communications with the prosecutor. Thus, we conclude that the judge’s failure to recuse denied Schlienz the right to a fair hearing before an impartial decision maker.

            State v. Schlienz, 774 N.W.2d 361, 369 (Minn. 2009).

  3. 4

    This was originally going to be a telephonic argument, but the court changed it to be in person.

  4. 3

    The Shure attorneys are the ones who’s names should be published after such a clear judicial invitation to file a sanctions motion for a frivolous brief even after oral argument.

  5. 2

    Chief Judge Moore: Okay, anything further?

    Ms. Rayburn: Yes, Your Honor.

    Chief Judge Moore: Really?

    Ms. Rayburn: No, Your Honor. Thank you, Judge.


  6. 1

    Got through about five minutes, and the word “stinging” is indeed apt.

    Other words that come to mind:
    and the phrase
    “Dragging kicking and screaming into the full spotlight”

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