Saturday, May 06, 2006

Object Lessons

Last week, I was at the Federal Circuit arguing a case. While waiting for my case to be called, I watched two other arguments. As usual, one was a patent case. It had to do with whether a company trying to sell bingo-style games had infringed a patent. I started wondering if the trial had included expert witnesses on bingo. I suspect that testimony would likely come from senior citizen women and Catholic priests. The second case involved attorney's fees in an appeal by a veteran who was originally denied benefits for injuries due to exposure to Agent Orange but got the case remanded for further investigation.

This post is primarily for my students and associates in my office (who I know are reading this blog). The message is simple: Preparation Matters! The guy arguing the veteran's case did a fine job. He had a folksy country-lawyer way about him and was obviously comfortable before the court. The issue was whether a remand makes the veteran a prevailing party. The Court seemed skeptical, but the lawyer held his own. Until a fact question came up.

Toward the end of rebuttal, a judge asked the lawyer whether the first part of his client's claim had been denied. The lawyer admitted that he did not know but pointed out that the claim is unitary and that the individual elements cannot be denied separately. The judge jumped all over him. "Really," the judge asked, "you don't know?" Another judge asked whether the case was being handled pro bono. It was not. The first judge circled back, "How could you not know?" Turns out that the lawyer making the argument was filling in for a colleague with a medical issue in the family. That did not sway the Court.

The judge then asked government counsel the status of the claim. She stated that the claim had been heard and was being appealed administratively. Then agency counsel, who was with her, corrected that answer and stated that the case was still under review by the regional office of whatever organization reviews these things.

It was brutal to watch. I think the lawyer did a good job, really. He knew the law and his theory made the question irrelevant, since it is all one claim. But, not knowing something from the record is going to create a bad situation if it comes up. This was a classic example, if a bit unfair, of being caught with one's pants down.

It is a simple thing to say: Facts matter. The record matters. Don't say anything you can't support with a cite.

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