Golden Bridge’s new argument (about validity of a wireless technology patent) has fallen down. My fair lady.
Can you raise on appeal an argument you didn’t make in the trial court? Usually not. Golden Bridge Technology, Inc. v. Nokia, Inc., No. 07-1215 (Fed. Cir. May 21, 2008).
What if you have shiny new appellate counsel? Counsel who thought up a bodacious new point that the old lawyers somehow missed? Does that matter?
No. It. Does. Not.
Blawgletter realizes that the losing party in its bitterness may feel a strong tug towards firing the old legal team and bringing in the pros from Dover. We don’t blame them. But, as the Golden Bridge case illustrates, switching counsel on appeal will seldom change the outcome. Indeed, if the new lawyer cites her predecessor’s mistake as the principal reason for reversal, she may (rightly) feel like a genius. But no court will rescue the client on that ground. And, unlike the old lawyer, the new counsel won’t even get Their Honors’ sympathy.
So we think clients, in general, ought to put aside their disappointment, unpoint the Finger of Blame, and go upstairs with the counsel who brung ’em.