Federal Circuit Judges Detail the Fastest Ways to Lose Your Case

Several types of blunders during oral argument can torpedo cases that are otherwise in the bag, Federal Circuit judges warned a conference room of appellate litigators.

“I think as many cases are lost at oral argument as are won at oral argument,” said Judge Timothy B. Dyk, who was an appellate lawyer before joining the influential court with jurisdiction over patent cases in 2000.

Dyk and five other judges for the US Court of Appeals for the Federal Circuit appeared on a panel Tuesday to discuss best—and worst—practices during the court’s biennial judicial conference. The conference’s programming featured all of the court’s active judges, with the exception of Judge Pauline Newman, who was suspended from hearing cases in September for not submitting to medical testing as part of a disability and misconduct investigation.

Taking too long during arguments, refusing to make any concessions, and displaying outward animosity to opposing counsel are fast-track ways to lose the judges you’re appearing before, the panelists said.

One way lawyers lose points that Dyk said “happens with some frequency” is advocates refusing to engage with the court’s hypothetical.

Such obstinance creates “a definite negative vibe,” he said.

Judge Tiffany P. Cunningham, one of the court’s newest members, agreed with Dyk—whom she clerked for in one of his first terms on the court.

It’s a common occurrence that a judge in a panel will “ask you a question that inevitably leads to a concession,” she said. But even though the concession seems obvious, the lawyer’s “unwilling to make it,” perhaps out of a concern that their client wasn’t consulted and would object to giving up an inch of ground.

“I would discuss with your clients ahead of time what you can concede if appropriate,” she said.

Judge Todd M. Hughes also echoed Dyk, and said another way lawyers can turn a win into a loss is by speaking for too long.

“All too often, we ask the appellants a lot of questions,” he said. “The appellee’s lawyers gets up, we’re obviously satisfied, and they spend the next 10 minutes talking to us, and that’s not helpful.”

“Often times they’ll end up losing their cases,” Hughes said.

Another tactic that can get an appellate lawyer in trouble is targeting their opposing counsel in a personal way, Dyk said. Asked by a moderator if the appellate judges notice animosity between lawyers before them, he said with a flourish: “Oh, yes we do.”

Dyk invoked a famous quote about legal advocacy: “if facts are against you argue the law. If the law is against you argue the facts.” If both are against you “pound the table and scream like hell.”

“Where there’s animosity, there’s a tendency for us to view that as falling into that category” where “there’s nothing better for counsel to say than attack opposing counsel,” Dyk said.

“It may make you as the advocate feel better, it may make your client feel better,” he concluded, but it makes a “very bad impression.”