To succeed at the CAFC, the advocate must succeed in three stages of appeal. The first stage of appeal is actually the stage of proceedings in the trial court. The trial court proceedings are the first stage of appeal because in the absence of correct advocacy in the trial court, there is no opportunity for appeal. The action in the trial court need not be the success of winning at trial. It must, however, at least be the success of preserving issues for appeal – preserving critical error that cannot be remedied at the trial level. In the second stage of appeal, the appeal must be successfully taken and briefed: clear, credible, powerful persuasion is essential. And in the third stage, the appeal must be sustained at oral argument in the face of the appellate judges’ vigorous views and incisive questions. A combination of three successes that radiates its own strong energy offers the best prospect of reaching the advocate’s goal at the Federal Circuit.
Charles W. Shifley, The Three Stages to Successful Appellate Advocacy Before the Federal Circuit, 1 J. Marshall Rev. Intell. Prop. L. 238 (2002)