Michel Explains Role of Federal Circuit, Offers Advice to Students

Paul MichelChief Judge Paul Michel '66 of the U.S. Court of Appeals for the Federal Circuit (CAFC) aimed to dispel some myths surrounding the court in his talk at the Law School March 15. It’s not just for patent gurus and engineers, and its breadth of cases is much broader than one might think, the 19-year veteran of the Court explained. Michel offered pointers for burgeoning attorneys preparing to argue in appellate courts and dispensed advice for those considering a clerkship.

“My first message to you is that clerking is a great thing, and anybody who gets the chance to clerk ought to take it,” Michel said, adding, “There are some myths about clerking that are perhaps worth trying to dispel.” 

One myth, Michel said, is that if you do not clerk on an appellate court, somehow you have missed the clerking experience. In fact, if you are given the option to clerk for either a district judge or appeals judge, Michel said clerking for a district judge would actually be a more practical, exciting choice.

“I think they are all good, and good in state systems as well as in the federal systems, so don’t believe the propaganda that…the federal appellate courts are the only places that are worth going to work for.”

Michel also disputed the idea that to be a clerk with the CAFC you have to be an expert in patent law, or an engineer. 

“About half of our clerks have training in some serious scientific or engineering discipline, but the other half does not,” Michel clarified.  “Indeed, many of us go out of our way to make sure that we don’t have only patent-type or intellectual property-type clerks, and have at least one clerk who has at least one set of very different interests.”

Michel emphasized the importance of clerks to the CAFC. The case load for the court has doubled since its creation in 1982, and the level of complexity of the cases has gone up “almost ten-fold,” Michel said.  Yet there are still only 12 judges serving on the court, creating a massive workload for them.

“Without the law clerks we couldn’t possibly do this job well, or promptly, or maybe at all,” Michel said.

Then there is the matter of whether the CAFC is a “patent court.”

In fact, patent-related cases only make up about a third of the cases the CAFC handles.  The court actually has slightly more labor law cases involving government personnel than patent law cases, and nearly as many cases concerning veterans, Michel said.

“We’re not really mainly a patent court, and as you might expect, the judges on our court are not mainly patent people either.  In fact the proportion is quite apt.”  Only about a third of the judges on the CAFC have backgrounds predominantly in patent law, Michel said. 

In addition to patent cases, the Federal Circuit also handles some medical torts such as those involving vaccines for children; the court also has tax jurisdiction.

The court “actually has exceedingly interesting, and very large and complicated tax cases, because these are refund cases.”  

In these refund cases, the party has to pay upfront, and then sue the U.S. government to get their money back.  Because only very wealthy individuals and large corporations are able to do this, these cases account for only a small proportion of the docket; only about 24 of the 1,743 cases in 2006 were tax-related.

“But the ones we get are doozies of huge complexity, and it’s a very important part of our work,” Michel said.

The court also has substantial numbers of takings cases, which are a direct application of Fifth Amendment doctrine, Michel said, adding that this should dispel the myth that the CAFC does not deal with constitutional law. 

“In a takings case it’s nothing but constitutional law, and the case law construing just a few words in the Constitution,” he said.

Michel advised that when an attorney is preparing to go before an appellate court, they should put less effort into preparing an oration, and more time anticipating and preparing answers to questions the judges might ask.

“Judges are going to ask a lot of questions, particularly appellate judges …and they actually expect answers, and they need answers, and they want answers, and lawyers who don’t answer the question, which is the large majority [of lawyers], lose points, because what it tells me is there is no good answer—your case is indefensible,” Michel said.

“What you need to do is come and deliver crisp, responsive, clear, coherent, candid answers to questions…that any good lawyer can anticipate will be asked by anyone who has to make a decision.” 

Oral argument offers judges one last chance to learn before they have to render an opinion on the case.

“When we beat up on lawyers, seemingly, it’s not to give them a hard time or embarrass them, it’s because we are desperate to make sure that we don’t make a mistake, that we really understand the case, that we didn’t get some fact wrong or misunderstand some portion of an argument.”

Michel, who has served as chief judge since 2004, has written over 300 opinions in patent, trademark, takings, contract, tax, veterans’ rights, international trade, and government personnel cases while serving as a judge for the Federal Circuit.

At the conclusion of Michel’s speech, law professor John Harrison offered comments on the role of the Federal Circuit Court of Appeals. The Law School, the Public Service Center, and the Student Legal Forum co-sponsored Michel’s speech. 

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