Texas Lawyer's patent judge roundtable continued this week, with Judges Lynn and Judge Godbey from the Northern District of Texas and Judge Gilstrap and Magistrate Judge Payne from the Eastern District covering joinder and multi-defendant cases, damage awards, Markman hearings, and best and worst moments in courtroom advocacy. The full transcript (wink link to the first one) may be available here. Below are some excerpts that might be of interest to readers.
On litigation in multiple districts and phoning a friend
John Council, senior reporter, Texas Lawyer, Dallas: Judge Payne, are you making dispositive rulings in multi-defendant cases early in the litigation? And what the heck do you do if you have got a multi-defendant case that is pending in your court and a companion case is pending in another jurisdiction?
U.S. Magistrate Judge Roy Payne, Eastern District of Texas, Marshall: You know, I know some of the judges in the district have coordinated with the judges in other courts as Judge Lynn referred to. I haven't had an occasion to do that yet. So, I — it's something I would certainly be open to. It's not a natural thing. I think most trial judges are not used to trying to coordinate with judges in other courts, but, obviously, there could be an advantage in doing it. And as far as the dispositive motions go, generally speaking, the most serious ones don't come up early in litigation. But, you know, we do try and address them as early as we can, but frankly most of them get decided later in the litigation and not earlier.
Council: Judge Gilstrap, I almost guarantee this has happened to you many times: multi-defendant case, something else is pending in another jurisdiction. Who makes the first call on a dispositive motion and do you call up a judge in another jurisdiction and go, ". . . [m]y case is in this posture, who goes first?"
U.S. District Judge Rodney Gilstrap, Eastern District of Texas, Marshall: I have done that, and I don't hesitate to talk to other judges, and I don't know any judges that don't hesitate to talk to me, as well. So, there is a lot of that communication, I think, that goes on where it's warranted. The biggest thing I worry about is inconsistent constructions on Markman. And where you have got two cases on a similar track in different parts of the country and you're getting close to a Markman hearing, you don't want to come out with yours on Wednesday and they come out with theirs on Thursday. And there are some issues of coordination. It's also come up where you've got cases that are clearly more conveniently postured in another venue and when does that case transfer? Judge Davis in our district likes to hold the cases post-Markman, before they go, and I know that there have been consultations with the transferring court [on] who is going to get it. "Do you want me to go ahead and rule on Markman and send it to you? Do you want me to hold up and send it to you now and let you take the Markman?" There is a fair amount of coordination, and it's all around the basic premise of: we don't want to waste each other's time. We want to be conservative with the resources that that court and this court has, and I think that's entirely appropriate.
On empirical data regarding the size of damages awards in the Eastern District of Texas
Council: Judge Lynn, you mentioned this earlier. You think maybe that folks are still sending their cases to [the] Eastern District because of the juries. What would you tell the audience — maybe, something they don't know about Dallas juries? You see them every day or see them often.U.S. District Judge Barbara Lynn, Northern District of Texas, Dallas: Well, you know, at SMU a couple of years ago at the program that they do regularly on the litigation in the Eastern District, there was some statistics there, and they don't bear out the conclusion that a lot of plaintiffs' lawyers think that those verdicts are disproportionately high in the Eastern District.
On best courtroom moves
Gilstrap: I tried a patent case, and I won't identify the players so everybody in the room can claim to their colleagues it really was them, but the plaintiff's lawyer cross-examined defendants' infringement expert . . . eight times in the cross-examination — I wrote them down — the expert said, "I made it up, I made it up, I made it up." And it was the most brilliant cross-examination I've ever seen. And that plays into Judge Lynn's comment, whether it's the worst thing or whether it's the best thing. It's not about engineering. It's not about technology. It's about oral advocacy and a good trial lawyer in a courtroom who knows how to handle a witness. That's really what makes my job so much fun, given the number of patent cases we have. It's not the scintillating thrill of the technology. It's the quality of the lawyers, and the worst case, the most boring case is fine if you have got exceptional lawyers. And unfortunately, the converse of that's true. The most exciting cases [are] not very much fun if you have bad lawyers. And we get, by and large, exceptional lawyers.
Payne: You know, one thing I'll mention, in addition to the good lawyers, one of the distinguishing features of these patent cases is the quality of the expert witnesses that you sometimes get. We have had some who are leaders in their field, and I think that finding an expert who can at least pass himself off as not testifying for a living is a big advantage. Some of the expert witnesses we've got are just outstanding, and I hear the juries talking about their perceptions of the experts afterwards very often. . . . [O]bviously, I think the lawyers know this, but it really is worth the effort to find the right expert for the case. In terms of what lawyers do in the courtroom, the best thing I see is time spent on cross-examination. I do think that if you don't effectively cross-examine a witness, they — they are so much stronger to the jury. The worst thing I see, frankly, is the lack of rehabilitation on redirect I see. Very often I'm amazed. After a good cross-examination, I'll basically see no questions or very few questions, and I think it's extremely important. I mean, sometimes the juries don't understand the effect of all the questions, but they can definitely tell the effect of the body language, and, you know, you have to leave on a high note . . . with your witness. And I — so I think that there should never be a case where you don't have some substantial redirect after a good cross-exam.
On limiting claims, terms, and time at trial
Audience Member: I'm curious about the panel's view on limiting claims in patent cases. That's a pretty hot topic now, and I know there is a lot of tension about what happens to those claims and the timing of when you do it. . . .
Gilstrap: I'll take a stab at that. . . . You know, I agree, . . . and there is a certain amount of buzz about this topic at present. Everybody has to address it from their own personal vantage point. I'm reluctant to manhandle a party's case and say, "OK, here is an arbitrary number. This is it." I have threatened to do it, if you don't do it through the meet and confer process, and I've sent parties back to narrow the scope a couple of times. And I find with a gentle nudge from the court, the threat, ultimately, of, I'll do it arbitrarily for you, if you can't do it, they get it done. And I would much rather have the parties do it than the court do it. It gets you to the same place. And, you know, much like Judge Lynn, I uniformly set time limits on trials. I've never set one 25 hours a side. I think the most I've ever set is 15 hours a side, and consequently there are cases where there are patents-in-suit that are not going to be able to be properly tried as a group, and they are going to need to drop some of their patents. And I have pretty much — depending on all of the factors and the timing, but by and large, I view it as if parties can't litigate all the patents-in-suit because of, in large part, the time limits the court's imposed on them — and that's a problem not of their own making. And I'm generally . . . receptive to a motion to sever out certain patents-in-suit and allow them not to be lost permanently, but to be set off to the side and go forward with the most pressing patents and the attached claims. I think you get there. I'm just not comfortable in . . . unilaterally stepping in and taking a knife and cutting this off and saying this is what's left. But you do have to have a workable number of patents and claims, and you do have to — you know, it's a strategic mistake for a plaintiff to go to trial with more than they can possibly get in within the time limits, and then they end up doing a poor job on everything. And I think good lawyers know that. And certainly, if I'm convinced that's what's coming with the time limits I have set and the number of patents-in-suit and the associated claims, that this is too big of a peg to get through this size hole, then I will actively try to move the parties toward taking care of that, but I would rather the parties do it. They know their suit better than I do. There is always the risk of unintended consequences if the court does it unilaterally, but I'm not going to let you stay there if I am convinced there is too much to get done in the time I have set. So, that's generally my approach to it.
Payne: And, I agree that it's problematic to just arbitrarily limit the number of claims, the number of terms that we are going to interpret. I think the way we handle that is just by limiting the amount of time that you have in making the lawyers prioritize. For instance, I know we've had cases where there have been too many terms coming up for construction, and we just tell each side that, "We'll take your ten most important terms, we'll take those up at this point." We'll limit the page numbers, limit the time. You know, typically our Markmans are three hours. And we find that once we interpret those, that, you know, the rest of the claims sort of work themselves out. And the same thing with trial. We set firm time limits, and the lawyers know what they can and can't present to a jury within the time that's allotted, and those things tend to work out that way, and the lawyers are the ones making the decisions about how to present the case as opposed to us saying which are in and which aren't.
Gilstrap: Yeah, and I do the same thing on Markman as well, and I had a Markman yesterday that there were 15 disputed terms. I had set a three-hour limit on the argument, and I ended up sitting down with the lawyers and saying, "I'm concerned we can get adequate argument on all these terms in three hours. So pick five that you want me to decide on the papers and pick ten that you want to spend your time arguing today on." I'd rather let the lawyers prioritize and value what they think is the most pressing. Because I take up indefinite [terms] at the Markman hearing, and there are claims that live or die at the Markman hearing, not just whether they are construed or it's a plain, ordinary meaning applied. So, I would rather have the lawyers do it, but if they don't do it, be prepared to get pushed to do it.
On contentiousness and credibility
Audience Member: What's the one thing the lawyers in patent cases can do to make your job easier?
Lynn: Well, there is an undue amount of contentiousness. . . . I was a trial lawyer so I get that these are heated matters, but there really is just an undue amount of squabbling about things that don't matter. And it happens in virtually every case I have. And it gives you — as the judge, it just gives you heartburn. So, there is a line between vigorous advocacy and just spiteful meanness, which I see a lot of and, you know, I have to call halt to it and I find it annoying and disappointing. So, I think lawyers, patent lawyers, should try harder to get along better because what made my job as a lawyer — one of the things that made my job as a lawyer a lot of fun was that I could kick Doug Cawley's butt in court and then go out and have a drink with him afterwards. So — or he could kick mine, to be fair. . . . I really harken back to the old days — and this really was true when I started practicing — that lawyers really enjoyed each other's company, and it didn't matter if you had a vigorous contest between your clients. That wasn't personal to you. And it's become too personal in too many cases, and I wish that were not so.
Gilstrap: Let me chime in on that, if I can for just a second, and I adopt everything Judge Lynn has said. One thing I see that I wish weren't this way, I remember an earlier time when lawyers knew where the line was, and they self-regulated to a certain extent and they didn't ask for things they knew there was no basis for them to have. And now the line seems to be gone, and the only gatekeeper is the judge, and both sides ask for everything they can ask for knowing full well that a good bit of what they're asking for is not supportable or warranted. And it's not what should you get. It's what can I get, whether it's right or wrong, and that's disconcerting to me. It takes a lot of time. It takes a lot of resources. It takes a lot of, you know, grief that I have to go through when I know and they know they shouldn't have asked for it. And when that rare lawyer comes along that I sense has self-regulated and otherwise might have asked for something that he or she knows and I know is probably more than [what] is fair and they don't do it, it's not lost on me. I make a very real note of that.
And I'd like to quote a lawyer some of you may have known. He is dead now. He was a mentor of mine as a young lawyer in East Texas, Franklin Jones, Jr. And Franklin used to always say, "Lawsuits are about a race for credibility; a race for credibility with the court and a race for credibility with the jury." And I think those words are absolutely true. And lawyers that will self-regulate sometimes, they get a big bump in the credibility area with this judge, and those that don't, it's a withdrawal slip from the credibility bank. So, that's what I wish I could change the most. (Ed. note: Franklin Jones, Jr. was a mentor to many lawyers in the area - when he passed away in 2008, I posted this brief memorial to him, including this picture of the flag in front of the federal courthouse in Marshall at half staff, and some stories about my experiences working for him during college and law school, some of which coincidentally tie directly back to Judge Lynn's comments two paragraphs above above lawyers' relationships with each other. What, you've never seen a courthouse flag lowered when a prominent member of the bar passes? That's kind of the point).
Payne: You know, in that same vein, I'd say, you know, pick your battles. The mere fact that you can get something doesn't mean you need to fight over it and get it. And the lawyers I value the most are the ones who have enough experience and enough sense to make that call and just to go after the things that matter that they need, and I appreciate that and I pay more attention to what they ask for.