Mock oral arguments should be done before, not after, the briefs have been filed

As someone who has argued over a dozen appeals from District Court judgments in patent infringement cases before the Court of Appeals for the Federal Circuit, I’ve frequently been asked to be one of the “mock judges” for mock oral arguments of other attorneys.

Invariably, by the time the client asks me to do this it’s too late for results the mock argument to be as useful as they could have been. Why? Because clients almost always wait to conduct mock arguments until after the appellant’s opening brief and the appellee’s brief have been filed – and usually after the appellant’s reply brief has been filed.

At that point it’s usually too late for an improvement to the oral argument to make a meaningful difference the outcome of the appeal.  There’s an old saying that you can’t win an appeal with your oral argument – you can only lose it. There’s a lot of truth here.  Appellate judges – and Federal Circuit judges in particular – have almost always spent considerable time reading the briefs before the first word of the oral argument has been spoken. Therefore, the proponent of an argument can rarely say anything that will change the judge’s initial views of the merits of his/her argument in a positive direction. If the proponent rehashes what was his his/her briefs, there’s little reason to believe that will change the judges’ impressions of the merits of that argument; if the proponent tries to introduce a new argument at oral argument she or he will be met with blank stares, or the question “Where was that in your brief, counsel?” About the only thing that can happen at oral argument that might change the outcome is if counsel makes a concession at oral argument that undercuts his/her client’s position.

I’ve had personal experience that illustrates the need to do your mock argument before the briefs are submitted. In one case, after hearing the original counsel’s mock argument less than a month before the oral argument date the client (the appellant) fired that counsel on the spot and asked me to take over the oral argument. I identified an argument that was discussed briefly late in the appellant’s brief that I thought could have been the winning argument if it had been featured as the first argument in the briefing and if more space had been devoted to it in the blue brief. But when I opened by argument by focusing on “the points made on page 34 of our ‘blue brief’” I was met with blank stares by the judges – because the points were discussed so briefly on page 34 that the argument I was making seemed new to them.

What is the practical takeaway from this?  Mock appellate oral arguments should be done before, not after, the briefs have been filed. The mock argument should be done a couple of weeks before the appellant’s opening brief is due, to allow some time to modify the opening brief based on the reactions of the mock judges. Following this practice will not add any significant cost, even for an appellant. While the appellant will not, of course, have the appellee’s brief at that point, it will certainly have the briefing that was submitted by the opposing party on the points raised in the appellant’s brief when those same points were argued to the trial court. The mock judges can simply be provided with those briefs, or appellant’s counsel can use those briefs of its opponent to draft a reasonable representation of what the appellee’s brief is likely to say.

© 2021 Richard S. Florsheim