Effective appellate advocacy before the Federal Circuit: a former law clerk's perspective.

AuthorHughey, Rachel Clark

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.

  1. 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)

  2. 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. As discussed above, the judges receive the briefs well before the oral argument, so they have time to review the facts and relevant law and make a preliminary decision before a single attorney speaks. Chief Judge Michel has said that in a majority of cases he makes a decision based on the briefs that is not altered during oral argument or during the panel discussion:

    First, in 80% of all appeals, I reach a firm inclination just from reading the briefs. Second, in 80% of those appeals, oral argument fails to "flip" me. And third, whether or not I had a view before argument, in 80% of all appeals my conference vote remains unchanged by the panel opinion. (15) Thus, the brief is extremely important in any appeal, and you should take care to provide the court with the best appeal brief possible.

    1. Brief Structure

      The best persuader ... is your brief

      --Judge Michel (16)

      The first point that I would make about brief writing is that it is extremely important to be clear in your brief

      --Judge Schall (17)

      A brief should be clear, honest, and consistent, provide a basis for the court's jurisdiction, and list the standard of review and carefully apply it. It should also accurately cite cases in support of the legal position, have an explicit theory of the case, use clear logic, and make appropriate concessions of law and fact. (18) The best way to write an appeal brief is to use short, simple, and direct sentences in the active voice. (19) Do not repeat yourself, do not ignore findings of fact, do not avoid adverse precedent, and do not dwell on obvious law or facts. (20) To make sure your brief is easy to understand, solicit feedback from other readers--particularly readers not familiar with your subject matter, including non-lawyers. (21)

      Federal Circuit Rule 28(a) sets forth the different sections that an appeal brief should contain: (1) table of contents; (2) table of authorities; (3) statement of related cases; (4) jurisdictional statement; (5) statement of the issues; (6) statement of the case; (7) statement of the facts; (8) summary of the argument; (9) argument; and (10) conclusion and statement of relief sought. (22) As discussed below, each of these sections provides you with the opportunity to persuade the court on your position.

      1. Table of Contents, Table of Authorities, and Jurisdictional Statement

        I think I actually find the "Table of Contents" a more helpful road map than the "Questions Presented" to begin to get a handle on what's truly at work in the case.

        --Judge Michel (23)

        When I open the briefs ... the first thing I look at is the list of cases cited. The fields of law in which we operate are not great in number, and after a few years on the bench you become familiar with the precedent so you know what kind of case it is by seeing what kind of cases are cited.

        --Judge Clevenger (24)

        A good table of contents (including the headings and subheadings in the facts and argument sections) is very helpful to the court, as it sets forth the issues in the brief in a clear and concise fashion. (25) For this reason, you should use detailed--but no longer than a sentence--headings and subheadings in both your facts section and your argument section. (26) Likewise, the table of authorities alerts the court about the kind of issues that are presented in the case. (27) In the jurisdictional statement you should always make sure that your case is final or otherwise appealable. (28)

      2. Statement of the Issues

        I hardly glance at the "Question Presented", to be candid.... The "Question Presented" typically don't help me that much as a judge.

        --Judge Bryson (29)

        I can't remember ever sitting on a case that was decided by the ninth or tenth "Question Presented", and in part that may be because I can't ever remember having read that far into the "Question Presented."

        --Judge Plager (30)

        The statement of the issues, also called the question presented, is rarely helpful to the court as presented in the average appeal brief because attorneys present too many issues and the issues are too long and too argumentative. (31) An effective question presented is short (a sentence or two), but presents the theory of the case and sufficient fact and law to support that theory. (32)

      3. Statement of Facts

        It is so essential that you make your facts clear and understandable. And I think the most effective facts are ones that are non-argumentative. Give a statement of facts with the citations to the record, and most appropriately, if possible, the findings by a court below and not be argumentative.

        --Judge Schall (33)

        In your facts section, tell a story and give the court the relevant background. When the court is finished reading your facts section it should already be on your side. (34) You should not make your facts section argumentative or cite law in it. (35) It should be clear, understandable, and filled with cites to the record that pinpoint the facts relevant to the issues on appeal. (36) The court will not be able to decide in your client's favor if you do not provide factual support for your arguments. (37) As a clerk, I generally found one side's brief more informative and honest than the other side's and would refer back to that brief when I had questions on the facts. You should strive to write the brief that the court and clerks will refer back to for an understanding of the facts and for citations to the record (which they will verify, of course). Make sure to discuss the prior tribunal's opinion, as that is what the court is reviewing. (38) And be sure to refer to it as "the district court" or "the trial court" and not "the lower court" or "the judge below." (39)

      4. Summary of the Argument

        [T]he "Summary of Argument", in my judgment, is essentially important because it tells you what the case is all about.

        --Judge Clevenger (40)

        The summary of the argument should be used as a concise way to assist the court in its understanding of the issues. (41) Tell the court what went wrong, whether it was an...

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