Eastern District of Texas Federal Court Practice

Shapes and logos

The patent docket in Marshall seems to be starting to affect the curriculum in local schools.  For example, the attached photo from my twins' graduation from pre-K last month shows them doing a song about recognizing law firms by the helpful colored geometric symbols in their logos (see below for examples).   

Hard to believe it's not Denny Crane...

It's official - having former AG Alberto Gonzalez getting appointed as an assistant to a special master in an Eastern District of Texas patent case lasted as the weirdest thing in the world of federal courts for only a day and a half.  Today it was replaced by news that 9th Circuit Chief Judge Alex Kozinski, who is currently presiding over an obscenity trial in Los Angeles, maintained a publicly accessible Web site featuring sexually explicit photos and videos (although judging by the reputed content, he might have just been saving them for Larry the Cable Guy). 
You just know that David Kelley is kicking himself for not coming up with this on Boston Legal.  William Shatner is reported to be pissed.  

Paralegal fees, dumb laws and good German potato salad

Just received the June 2008 issue of the Northeast Texas Association of Paralegals' Key Note and saw some information I thought might be of interest to readers.  Key Note had - two days before the national press had it, incidentally, a short report on the Supreme Court's June 2 decision in Richlin Security Service Co. v. Chertoff in which the justices unanimously reversed the Federal Circuit's decision (funny how that keeps happening) and rejected all of the government's arguments that the Equal Access to Justice Act limited recovery of paralegal fees to the attorney's cost -- which was lower than the billed rate.  NALA had filed an amicus on the issue, which obviously would be of interest to paralegals, but which I thought might be of interest to readers as well. 
The issue also has some ethics FAQs from the Texas Paralegal Division and a good article on ethics for paralegals, and under the "Dumb Laws" column, notes that in Mississippi it is illegal to teach others what polygamy is, and in Montana it is illegal for unmarried women to fish alone (married women can fish alone except for Sundays).  Also a good recipe for German potato salad (I say good because it requires half a cup of bacon grease, as all good recipes must).

Ream of Paper #4 Opened

One of the things I've told people about my new office is that with a practice heavily weighted towards federal court, where all filings are electronic, we've dispensed with paper files almost completely.  Of course we have CDs of document production and some paper where I've kept working copies of some briefing, but there are no true case "files" in our office, and certainly no file cabinets or shelves - half of one desk file drawer handles what little non-electronic case information there is and the actual "files" are all in electronic form on our server, with what little actual paper comes in our office scanned and discarded automatically.  Our office has a file room, but its shelves hold toys, since we've turned that into my boys' play (and study) room when they come to visit after school.
What brought home to me how unusual that is is this week, when my desktop printer ran out of paper and I had to open a ream of paper and realized that it is only the fourth we have opened in the five months my new office has been open.  That's less than one ream of paper per month, despite having three printers (which also double as our scanners and "copiers" although I honestly can't recall making a "copy" of anything since we've been open).  With the local rules requiring filing online and eliminating the need to serve counsel with copies of the filed documents we just don't have to print anything any more - documents go straight from files to e-mails and e-mails to files or "to be read" folders (and more easily than ever in the latest version of CM/ECF - it is literally one-click downloading of almost any document, including all attachments).
I'll be talking about the paper-less options more in an article on starting a new law office in next month's Texas Bar Journal, but given the interest our office's unique approach to paper I may be speaking on that more often - people certainly are interested in options to save file space and eliminate the cost and inefficiency inherent in paper-intensive operations.  Don't get me wrong - I still use paper - it's just the exception these days - not the norm.

Time Limits at Trial - 2008 Fifth Circuit cases

One of my favorite research sources is Fifth Circuit Federal News, edited by Robert McKnight and Maureen Blackburn Jennings which in addition to monthly publications on cases and issues of interest to practitioners in the Fifth Circuit also provides a daily report of all published (and selected unpublished) cases out of the Fifth Circuit.  (I've even written the occasional case summary for them).  I saw Bob recently at the In re VW arguments, so I'm looking forward to his expert take on what he saw.
This morning's e-mail from FCCN noted an unpublished decision from the Fifth Circuit yesterday, Seymore v. Penn Maritime Inc., No. 07-40430 (5th Cir. June 5, 2008) (Reavley, Benavides and Owen) (per curiam) in which the defendant appealed the district court's "limitation of its time to cross-examine witnesses and present its case to 10 hours."   On plain error review of the time restriction (since the defendant did not object at trial) the Fifth Circuit found no abuse of discretion. "We are convinced from a review of the record that Penn had sufficient time to develop its defensive theories and present its case," the per curiam opinion wrote.  "Penn fails to show that the district court abused its broad discretion to manage its docket and control the trial."  What FCCN was nice enough to then point out was a recent decision out of the Eastern District in which time limits were at issue.  In McClain v. Lufkin Industries, Inc., No. 05-41417 (5th Cir. Feb. 29, 2008) (Jones, Higginbotham and Clement), the Court found no abuse of discretion in giving each side 20 hours to present its case: "[W]e do not doubt that it was difficult for Lufkin to mount a defense ... in the mere twenty hours the district court allowed each side," but Lufkin failed on appeal to show how it "suffered reversible prejudice."  (It reversed the case in part on other grounds anyway).
Now I know what you're saying is "gee, how I can I get twenty hours to put on my case in the Eastern District!"  I thought the same thing - I don't think I've ever had that much time, even in a patent case (actually there have been a very few cases that did go over a week).  But the cases also point out what I see in practice, which is that while attorneys pull their hair out beforehand thinking how they can try a case in 13-18 hours per side, they always end up giving time back, rather than asking for more (which, along with demonstrating why you need it, is what you have to do to preserve a claim for appeal).  I'm a big believer that the time limits actually help you put on a better case, rather than hamper you, and I think many lawyers who have actually tried cases under the limits would agree.
So the chess clocks are staying.

IP Law & Business article on venue proceedings at Fifth Circuit

Joe Mullen is a reporter at IP Law & Business magazine who also runs a weblog The Prior Art - One reporter's notes on the IP beat .  In his recent post on highlights from the May issue of the magazine he notes an article on the pending In re VW en banc proceedings at the Fifth Circuit.  The article is at p. 14 of the May issue, which is available to subscribers - although it may show up on the magazine's website soon (as, for example, the 50 Top IP people under 45 article has).  Good article.

"I try not to read that many cases, your Honor" - a case for the water cooler

Just when you thought you'd seen the most bizarre occurrence in a courtroom, along comes another one.  Although this case is not related in any way to the Eastern District of Texas, I thought readers might be interested in it.  In Hartz v. Tulane (5th Cir. 4-16-08), the Fifth Circuit was considering a Title VII and retaliation claim.  The opinion can be found at http://www.ca5.uscourts.gov/opinions/unpub/07/07-30506.0.wpd.pdf

The case was heard by three of (in my book) the best judges on the Fifth Circuit, former Chief Judge Carolyn King, Judge Carl Stewart and Judge Ed Prado. 

Briefly, the facts are these: after Plaintiff-Appellee Renee Hartz, M.D., was denied tenure by the Tulane School of Medicine, she brought a Title VII and breach of contract lawsuit against the school and hospital where she worked. She alleged that the denial of tenure was based on her sex and in retaliation for her previous equal employment opportunity activities. She also alleged that under the terms of the faculty handbook she had already acquired de facto tenure, and that her termination upon the denial of tenure was therefore a breach of contract. While the district court denied, in part, motions to dismiss for failure to state a claim brought by the school, the Administrators of the Tulane Educational Fund ("Tulane," the operator of the Tulane School of Medicine), and the hospital, University Healthcare System LC ("UHS," the owner of Tulane University Hospital and Clinic ("TUHC")), it certified an interlocutory appeal which this Court accepted. For the reasons set forth in the opinion, the Fifth Circuit reversed and dismissed.  

But the interesting part came at the end of the opinion, where the Court wrote the following (I have reproduced the paragraph and the footnote within it, which is interesting reading - it is especially interesting if you know Judge King, because I can just see the look on her face during the following exchange):

Finally, and completely separate and apart from the issues raised on appeal, we would be remiss if we did not comment on the conduct of Roger Phipps, counsel for Hartz, during oral argument in this case on Tuesday, March 4, 2008. Phipps' conduct towards the Court during argument was unprofessional. Even more serious was his admission that during his work on the case (including his preparation for argument), he had not read a key Supreme Court case. His cavalier disregard for his client's interest and for his obligation to the Court was both troubling and disgraceful.4 Accordingly, we are ordering Phipps to provide his client, Hartz, a copy of our opinion immediately after it is released. In order to ensure compliance, we are further directing him to supply our Court with proof of service.

4 An example of Phipp's interaction with the panel is included below.

Phipps: . . . so that's about all I have to say, Your Honor. I don't have anything other than that. You know, my client lives in Chicago. We communicate occasionally on the phone, she sent me the documents. And um, she's a doctor. She continues to earn a living, and she's generally unavailable if you call her because she, she's sort of a traveling doctor.

Judge: That's not much of thing you come in here and tell us, I guess.

Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as whether even Ricks should apply, I don't think it should.

Judge: What do you do about Morgan?

Phipps: I don't, I don't, I don't know Morgan, Your Honor.

Judge: You don't know Morgan?

Phipps: Nope.

Judge: You haven't read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don't know if that's not Ledbetter, I can't remember the name of it. Ricks is the one that I go by; it's my North star. Either it applies or it doesn't apply. I don't think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here-it's a Supreme Court case-and say you haven't read it. Where did they teach you that?

Phipps: They didn't teach me much, Your Honor.

Judge: At Tulane, is it?

Phipps: Loyola.

Judge: Okay. Well, I must say, that may be an all time first.

Phipps: That's why I wore a suit today, Your Honor.

Judge: Alright. We've got your attitude, anyway.

Not surprisingly, the two Loyola law schools are not happy to claim Mr. Phipps - as this blog post notes, Loyola - New Orleans flat denied he graduated from there, and he's listed in Martindale at Loyola - Chicago.  But is appears the Chicago is a mistake, and his classmates in the 1990 Loyola - NO class reluctantly admit that yes, he's from there.  As best I can tell, Loyola-NO has not retracted the denial (and was last reported drinking heavily in a bar on Bourbon Street).

 

Viva Fiesta! State Bar board meeting in San Antonio

Yesterday and today I'm at our quarterly State Bar of Texas board of directors meeting in San Antonio.  I posted the picture because of a San Antonio tradition I just learned about, which is Fiesta medals (think Mardi Gras beads without the indecent exposure).. Fiesta medals of any sort are prized during Fiesta, and last night I scored a blue "Community Justice Program" medal by the San Antonio Bar Association (the blue one) and a red, white and blue "State Bar of Texas Board of Directors" with an Alamo on it.  The most highly prized one, I'm told, is actually one by the local district attorney - go figure.  But I'm proud of mine, and wore them to this morning's meeting as well.
Busy day working patent cases remotely in preparation for next week's status conference with Judges Ward and Everingham - ended up with a unopposed motion to transfer one case, setting up meetings in our new office's visiting attorney rooms in another, and working on agreements on discovery disputes in another.  Also learned that Rick Frenkel has been nonsuited from the Ward/Albritton case against Cisco, since Cisco apparently admitted he was in course & scope when blogging. 
The highlight was when a New York reporter who was interviewing me asked me for a Texas-style description or metaphor for Judge Ward, and promised me anonymity!  I disclaimed the anonymity and told him what Judge Ward once said about himself at a hearing when calmly (more or less) explaining to a lawyer that he was perhaps not completely persuaded by a position. As best I recall, what he said was "I may have just fallen off the turnip truck, but it was real close to the courthouse at the time, counsel, if you take my meaning."  I've always liked that.

Litigation Section Council - spring meeting in Corpus Christi

One of the organizations I've privileged to be on the governing board for is the Litigation Section of the State Bar of Texas, which is the largest of the State Bar's sections, and represents litigation practitioners across the state.  I've been on the Council for six years, and am going into the officer rotation in June when we change officers.  The section's Council had its spring retreat in Corpus Christi last weekend.  While I missed part of it because of the Causes of Action seminar in Dallas, I did make dinner on the aircraft carrier USS Lexington Friday night , and the Saturday meetings.  As the Lexington is one of the aircraft carriers I wrote a book on a few years back (Essex Class Carriers in action, Squadron-Signal Publications, 1996), I was very excited to get to spend the evening on the ship.  We had dinner on the fantail, took a group photo on the stage on the hangar deck , and then toured several parts of the ship, including the navigation bridge and pilot house  (yeah, that's me, talking too much as usual).  There were new exhibits on Pearl Harbor in the forecastle that weren't there the last time I was on the ship a year ago, and it was great to see. We also were excited to have lunch Saturday at legendary Corpus foodie site Snapka's hosted by Council member Kathy Snapka.
The Council is continuing to work on numerous programs of interest to litigation practitioners in Texas, including publication of the The Advocate quarterly and News for the Bar newsletters (which are outstanding, by the way), participation on statewide task forces looking into issues such as the current Court Administration committee, leadership on the occasional crisis (it helped get lawyers for the West Texas proceedings), the annual Litigation Update and annual meeting seminars.  We are also looking into other issues of interest to lawyers, including the costs of discovery.  As always, if anyone can think of an issue that the section ought to look into, just let me know.

East Texas title opinion

Courtesy of Justice Bailey Moseley of Marshall, attached for your reading pleasure Download title_opinion.pdf is an outstanding example of a East Texas title opinion.  This should give readers an idea of what East Texas lawyers and judges (and future judges if you read closely) handle when they're not involved in patent cases.