Oral Advocacy Insights from Federal Circuit Judge Moore and WDTX Judge Albright
On April 5, 2021, the Berkeley Center for Law & Technology and the Federal Circuit Bar Association presented a panel discussion on oral advocacy in federal court for junior lawyers and associates.
Federal Circuit Judge Kimberly Moore and District Court Judge Alan Albright (WDTX) shared insights about the role of oral argument, the importance of answering challenging questions, and best practices for appearances in federal court (including when appearing telephonically or via Zoom).
Kathi Vidal, managing partner of Winston & Strawn’s Silicon Valley office and founder of ChIPs NextGen, moderated the panel.
The Role of Oral Argument Is First and Foremost to Allow Judges to Ask Questions.
Both judges emphasized that, at oral argument, it is crucial to listen to the judges’ questions and answer them directly.
Judge Moore explained that by the time cases reach the Federal Circuit, they have been narrowed down to key claim terms or issues, which allows the judges to become familiar with the issues before oral argument. She explained that lawyers do not need to spoon-feed information about the case or educate the judges on the matter. Rather, oral argument is for judges on the panel to ask questions that arose after reading the briefing.
Judge Albright agreed, and implored attorneys to research a judge before making an appearance. Some judges, for example, prefer to create a detailed record of the facts of the case. Others, like Judge Albright, prefer to ask questions and pose hypotheticals. He expects attorneys to come to discovery motion hearings prepared with specific requests. He makes it his practice to issue preliminary claim constructions before a Markman hearing to guide the arguments. Understanding the judge’s preferences in this way is critical for effective preparation.
One thing quickly became clear: an attorney faced with a challenging question at oral argument should never evade the question—whether because she does not know the answer or does not want to provide a damaging answer. Judge Moore cautioned that evading these questions reflects poorly on the attorney and her case.
She explained that her hypotheticals, to the extent she poses them, are intended to test the boundaries of the proposed rule of law. Judge Moore wants lawyers to answer directly, recognizing that the hypothetical may not present facts identical to the present case. They may qualify their answers with caveats about the present case but should not avoid answering entirely. Judge Albright echoed that adding context is appropriate, so long as his question is answered first.
Professionalism in the Courtroom (Even a Virtual One) Is Always Required.
Judge Moore and Judge Albright underscored the importance of civility and professionalism when appearing for oral argument. For one, Judge Moore warned against overly harsh or accusatory language against one’s opposing counsel or a lower court judge. She often finds that the party who makes such accusations is in fact the party more deserving of such criticism.
Similarly, Judge Moore expects attorneys to refer to others in the courtroom by name and with civility. And, having been referred to by the wrong name in the past, she advised attorneys to take care to know the judges’ names, and pronounce them correctly, or stick with “Your Honor.” For opposing counsel, shorthand such as “my brother,” “my friend,” or “the bad guy on the other side” is simply never appropriate. But, when mistakes happen, apologizing and correcting your choice of language can go a long way.
Judge Albright, who continues to conduct all hearings over Zoom, explained that it is easy to become too comfortable during video calls. To avoid this, he encourages a professional appearance and avoiding informal language. He noted that professionalism is particularly important when asking for an extreme remedy such as a preliminary injunction or sanctions. He recommends focusing on the critical reasons for such a request—if an injunction, explain why it is necessary to avoid irreparable harm; if asking for sanctions, understand that such a request may not be weaponized and must be justified.
The Judges Encourage Providing Junior and Inexperienced Attorneys with Oral Argument Opportunities.
The judges are enthusiastic about the prospect of junior or inexperienced lawyers arguing before them. While Judge Moore typically discourages parties from dividing arguments between attorneys (the Federal Circuit panel might only have questions on one issue, for example), she makes an exception when counsel carves out an issue for a junior lawyer to argue. She finds that junior lawyers are commonly either given slam-dunk arguments or those that are impossible to win—rarely the issues on which the case will be decided.
Judge Albright describes junior lawyers appearing in his court or over Zoom as being among the most prepared lawyers he sees. He acknowledges that the virtual format makes it harder for attorneys to jump in and interrupt—especially cautious lawyers arguing for the first time. To accommodate this, he has taken to pausing after a strong argument to invite the other side to respond.
Both judges were also understanding that junior lawyers, despite thorough preparation, may not argue as well as someone with significant oral advocacy experience. For that reason, neither penalizes a more-senior attorney for jumping in to address an issue if the need arises.
Ultimately, both judges agreed that they would support, rather than discredit, a party that offered a junior lawyer the opportunity to argue. Such an appearance, however, invites an educational opportunity, rather than a “free pass.” Both Judge Moore and Judge Albright urged young attorneys to come prepared for a lot of questions.
PowerPoints Are Not Always a Powerful Tool in the Courtroom.
While many attorneys may feel compelled to use visual aids to support their oral argument, the judges caution that they do not find them effective in every context. In his numerous patent hearings, Judge Albright often finds it helpful to read along when an attorney recites an excerpt from the patent or the intrinsic record, so he appreciates when succinct textual citations are highlighted on a slide. Short of that, he rarely finds PowerPoint presentations helpful.
Visual aids are even more scarce in the Federal Circuit, where Judge Moore prohibits PowerPoints, and finds physical demonstratives distracting. The sole exception, in her experience, is when it is necessary to show the physical accused product or invention to demonstrate how elements fit together, such as where 2D diagrams are insufficient.
The (Near) Future of Oral Advocacy Will Be in the Courtroom and Beyond.
Courts across the country are making important decisions about post-pandemic operations. The Federal Circuit, which has been holding telephonic conferences throughout the last several months, hopes to return to in-person arguments in the near future, pending vaccine distribution and case numbers, Judge Moore reported. She is particularly mindful of the fact that the court is situated in Washington, D.C., requiring parties to travel from across the country to appear. Yet she finds appearing in person generally commands greater professionalism and preparedness, and she looks forward to returning to the courtroom when it is safe to do so.
Meanwhile, Judge Albright has become a major proponent of maximizing technology in his cases. He has found that conducting hearings over Zoom enables clients and younger lawyers to attend without incurring additional travel expenses. In his Waco court, he plans to give parties the option to attend in person or virtually within the same hearing. He supports hybrid proceedings going forward, to empower lawyers to utilize whichever format will be most beneficial for their case and for their clients.
Fortunately, these insights provided at the panel—from maintaining professionalism to preparing thoughtful answers—will serve lawyers well in any oral argument format.
Written by: Nicole Malick, Winston & Strawn