Fed.Cir. R.36 affirmances; oral argument article

 And once again.... Law.com has Will the Federal Circuit's One-Word Affirmances Get Supreme Court Scrutiny? -- The U.S. Court of Appeals for the Federal Circuit's Rule 36 allows it to simply say a lower court or administrative decision is “affirmed” rather than issue an opinion explaining the circuit's view of the law.

• In about 40% of Patent Trial and Appeal Board appeals last year, the U.S. Court of Appeals for the Federal Circuit issued one-word affirmances rather than a full opinion
• For reasons not completely clear, the circuit implemented the rule in 1989
• The Federal Circuit isn’t the only circuit with such a rule. The D.C., Third, Fifth and Eighth circuits have similar mechanisms, for instance.
• But the Federal Circuit applies the rule far more frequently than any other circuit. The Fifth Circuit used its rule twice last year, compared to the Federal Circuit’s 124 uses

In the ABA Journal Ben Sessions and Andrew Fleischman have How to do an appellate oral argument

In every argument, you should have an answer to at least these:

1. What is your best case?
2. How do you distinguish your opponent’s best case?
3. For any vital fact, where in the record can we find it?
4. For any vital fact, how do you disagree with your opponent’s characterization of that fact?
5. What specific relief are you asking for?
6. Where was your objection preserved, and why is it procedurally appropriate to grant you relief?

Then there are the far trickier questions to prepare for. For instance:

1. If a fact or point of law is hotly contested, can you concede it and still win?
2. If you win, how will it affect other cases?
3. Do we need to overturn any authority?

And here's latest installment of Law360's Wheeling & Appealing: The Latest Must-Know Appellate Action

This month's trivia question asked you to identify the circuits with the lowest and highest percentages of argued appeals (according to 2022 data in the book "Written and Unwritten"). As you can see in the nifty chart below these words, the lowest rate (11%) can be found at the Fourth Circuit, and the highest rate (35%) can be found at the Seventh and D.C. circuits.

Law360 also has Diverse Judiciary Is Crucial, Justice Jackson Tells Attys

U.S. Supreme Court Justice Ketanji Brown Jackson told attorneys in Miami on Thursday at the American Bar Association's annual White Collar Crime Institute that her judicial philosophy is "still under development" and said diversity in the judiciary is necessary to help instill confidence in the judicial branch of government.

And today's published opinion on (non)appealability...

There does not appear to be a case directly on point. But in light of the foregoing general principles, we agree with respondent. An order allocating discovery referee fees is not a sanctions order, even if the referee fees are allocated based on the referee’s perception that appellants caused the discovery disputes by providing inadequate discovery responses. The referee’s recommendation did not use the word sanctions. The referee’s recommendation did not cite any legal authority to impose sanctions.

[The MetNews has Order That Is Tantamount to a Sanction Is Not Appealable]