Judge Kara Stoll of the Federal
Circuit provided interesting insight into the
Court’s views yesterday.
The former Finnegan partner joined the Federal Circuit in
2015. "In some ways it was an easy transition," she told Lisa
Jorgenson in an interview during the luncheon. "I
didn’t have to worry about losing any cases and my
clients always pay." But she says the sheer number of cases has
been challenging.
On the subject of rehearing petitions, Stoll raised a gripe.
"For what it’s worth, I really think the court and
the bar would be well served if there were more selective use
of petitions for rehearing. Then the ones that are really
deserving, exceptional issues of importance, would stand out a
little more."
Stoll observed that "occasionally, and maybe even often",
cases have a big time gap between when an appeal is filed and
when oral argument is scheduled. "One thing I noticed was the
delay wasn’t necessarily due to the
court’s action," she said. "We seemed to be
keeping up, but in some cases counsel for both sides or just
one side would identify months on end when they are not
available for oral argument, and not necessarily explain why or
give good cause."
She added: "It is something we are going to look into and
something that is important to us because we want to keep up
with our docket."
Stoll discussed the number of issues that should be raised
on appeal. The Federal Circuit has counseled for years that
raising more than three issues can be difficult because of the
limited amount of space in a brief and because weaker arguments
can make stronger arguments appear weak. "We receive a number
of appeals still where there are five or six issues raised, or
the issues raised are questions of fact," said Stoll. "For our
review of PTAB appeals, the standard of review is substantial
evidence. We see a lot of appeals where somebody is arguing
that there isn’t substantial evidence to support a
fact finding by the PTAB when in fact there is. So one thing
that would behoove the bar would be to think about that
substantial evidence standard and also think about legal
issues."
Jorgenson asked Stoll what distinguishes a good appellate
lawyer from a great appellate lawyer. "It is really knowing the
record well so that during oral argument you are faster with
the record and the facts," explained Stoll.
At oral argument, the judges have already read the briefs
and studied the relevant issues. They have to vote immediately
after oral argument on the outcome of the case.
"So a great attorney at oral argument really hears the
question and answers with a yes or no and an explanation if
necessary," Stoll said. "They really know the record and the
case law and are willing to make concessions, both in terms of
what the facts are. But also if the attorney isn’t
familiar with the particular case that you are asking about, it
is better to admit you don’t know than to pretend
you do."
Stoll also gave some advice about writing briefs. She said
that many briefs do not dig into the facts as much as
necessary. One example of an error is saying a client should
win because of a certain case and then just citing that case. A
great brief would give the facts of the cited case and explain
why the current case is just like it and why the court should
rule the same way.
"I am really surprised by the number of briefs that tackle
the issues not at a level of depth that I need in order to be
able to resolve the case," said Stoll. "So I think
that’s one thing that distinguishes a great brief
from a good brief."