Be Prepared to Argue Your Co-Counsel’s Case

When there are multiple defendants in a patent case, it is common during the appeal for each defendant’s attorney to argue a portion of the allotted time during oral argument.  That rarely works well and the judges have been heard on more than one occassion to express their dissatisfaction with that arrangement.

At a recent oral argument, as the parties were just about to begin their oral arguments, the panel asked if the attorneys for the defendant-appellants wouldn’t mind rearranging their argument time.  Instead of each attorney arguing the issues that affected his respective client, one attorney was asked to speak to all the issues in the opening argument.  The other attorney was asked to handle the rebuttal argument on all issues.  As you can hear Chief Judge Rader explain, this was to help the panel develop a more fluid line of questioning. [Listen].   The attorneys agreed to accommodate the court; and being very talented advocates, they conducted the oral argument  without any hiccups. 

One interesting note is that Chief Judge Rader commented that the court views oral argument as its time.  That is probably a useful reminder for appellants.

Asking parties to switch or embrace unexpected issues at the last minute strikes me as a bit unfair.  It raises interesting hypothetical ethical issues as well.  One could imagine a hypothetical situation where defendant A has a strong non-infringement position and wouldn’t mind seeing its competitor, defendant B, found to have infringed the same patent under its weaker theory of non-infringement or invalidity defense.  Nevertheless, attorney for party A is asked by the court at the last minute to present on all the issues, which necessarily requires defending party B. 

You can listen to the entire oral argument here [Listen] and read the court’s Rule 36 opinion here: [Read].

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