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Select outside litigation counsel based on listening to tape recordings of arguments before judges?

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I had to smile at the questions, published in the Patent Lawyer, Vol. 3, Spring 2006 at 3, one US IP litigator recommends corporate counsel should ask when selecting patent trial counsel: (1) are you registered to practice before the USPTO; (2) have you tried 10 or more patent cases in the last five years and with what outcomes; (3) can you provide “tape recordings of arguments made by [you] or [your] firm before the U.S. Court of Appeals for the Federal Circuit or for arguments before the U.S. Supreme Court”; (4) what are the names of five corporate counsel or client officer references.

Care to guess what one US lawyer happens to be able to affirmatively answer those questions?

I doubt that general counsel or chief patent counsel conduct such an exhaustive search – except of course to settle down for a good listen to recordings of the oral arguments before appellate courts – when they need to retain patent litigation counsel. Not that any of the questions are useless, but they are quite demanding and time-consuming.

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One response to “Select outside litigation counsel based on listening to tape recordings of arguments before judges?”

  1. Trevor Hill says:
    April 13, 2006 at 4:43 pm

    Although a client could determine from a recording whether a particular lawyer had good speaking skills, the client would most likely not be able to determine some very important things from the recording.
    He would not be able to tell how well the lawyer answered the questions in terms of the law and facts of the case, why certain arguments were made or not made, or basically any of the technical or legal aspects of the case underlying the oral argument. For this he would have to read the record and the briefs, and even then it might not be apparent why a particular strategy was followed.
    Since the client really has to rely on other information to determine their counsel anyway, I would tend to think that a client might be better off not worrying about such recordings unless they showed woefully poor practice.