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Federal appellate lawyers and judges engage in a courting ritual around the country over how early to reveal the names of panel judges. Like the groom in an arranged marriage, lawyers want to see the bride as soon as possible. Some judges, wary of bride shopping, want to hold off unveiling their names. The U.S. Court of Appeals for the Federal Circuit became the latest runaway bride when it abruptly ended a 6-month-old experiment giving lawyers an advance peak at the names of judges who will hear arguments. In a one-sentence order posted on its Web site on May 2, the court reverted to its tradition of releasing panel members’ names on the day of argument. The court had released them the Thursday before argument week. ‘Argue generically’ “The general consensus was the arguments were distorted as opposed to arguing the strongest points,” said Jan Horbaly, circuit executive for the Federal Circuit, which specializes in patent appeals. Judge H. Robert Mayer, who always opposed the advance release of names, said, “I did notice a difference.” Lawyers would research and cite past cases written by judges on the current panel. “It gives the wrong appearance,” he said. “I don’t care if I wrote it or someone else wrote it. We are bound by it,” he said. Judge Alex Kozinski of the 9th Circuit, which has provided a week’s notice of panel composition for a decade, said he is unimpressed by citation to his own prior rulings. “People are deluding themselves,” he said. “We want people to argue generically. I tell them I am a different person now than I was then. My opinions are no more persuasive now than then.” The demise of the early-notice experiment may have been pushed along by a hotly contested dispute over opening Pfizer Inc.’s lucrative $2 billion annual market in the anti-depressant Zoloft to makers of generic versions. In January, Mayer dissented in a panel decision that threw out a suit by Teva Pharmaceuticals USA Inc. in its effort to produce a generic Zoloft. The majority said the court had no jurisdiction without an imminent suit. Mayer sided with Teva. Teva Pharmaceuticals USA Inc. v. Pfizer, No. 04-1186. Pfizer’s decision not to sue Teva took advantage of complex patent rules to tie up Teva’s investment until at least 2010. A majority of the court denied en banc review, with a dissent that included Judge Arthur J. Gajarsa. When a nearly identical declaratory relief jurisdiction case popped up in arguments a month later involving Apotex Inc., both Mayer and Gajarsa were on the panel. Seeing a likely defeat, Pfizer promised Apotex it would not sue for patent infringement, effectively mooting the case. Mayer expressed his displeasure during the argument suggesting that posting panel names may be a very bad thing. Apotex Inc. v. Pfizer Inc., No. 04-1463. The news the court had canceled the experiment disappointed appellate practitioners. “From the vantage of an appellate litigator, the more information about the panel the better in terms of formulating a strategy,” said Henry C. Dinger of Goodwin Procter in Boston, who represented Teva in the original Zoloft dispute. Advance knowledge of the composition of the panel helps “to identify landmines. You have so little time in arguments . . . you’re constantly trying to triage,” he said. Only two other circuits limit notice of panel participants to the day of arguments, the 4th and 7th. The D.C. Circuit gives the longest advance notice, releasing panel names when the cases are calendared as much as a year in advance. One week remains the standard for advance warning at the 1st, 5th, 9th and 11th circuits.

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