Eastern District of Texas Federal Court Practice

Eastern District of Texas bench/bar - Friday general sessions and breakouts on patent/criminal/civil

Friday morning of the bench/bar started off with a panel on Story Telling & the Art of Persuasion, moderated by Karen Smolar, with panelists Doug Cawley and Fay Morriseau.  That was followed by the always popular panel of former jurors Persuasion Seen From Inside the Box with Judge Judith Guthrie, Jason Cassel and Jennifer Doan.

After the morning break, the conference split into three tracks focusing on patent law, criminal law, and general civil litigation.  I have summarized the tracks below:

Patent Law

• The DFW USPTO: Who, What, When & Where? - Discussion of what to expect as the USPTO prepares to open its Regional DFW office with Judge James Smith, Chief Administrative Patent Judge, USPTO, and Bart Showalter.
• Key ED Texas Patent Decisions & Federal Circuit Trends - Review of leading ED Texas patent decisions and trends in Federal Circuit, which I moderated with panelists Jennifer Parker Ainsworth, Peter Corcoran, Wes Hill & Judge Roy Payne.
• Into the Future: What’s Ahead? - a focus on what lies ahead for intellectual property moderated by Professor Xuan-Thao Nguyen, with panelists Bart Showalter & Professor David Taylor.
• Balancing the Equities & Interests: Do Defendants Really Want to Go It Alone? Panel discussion on the issues of scheduling, claim construction and trial in situations where a patent is alleged to be infringed by multiple parties moderated by Charles “Chip” Molster with panelists Chief Judge Leonard Davis, Mark Flagel, Ronald Schutz & Wayne Stacey.
• What Does Technology Have To Do With It? Panel discussion on the interplay between the technology side of a patent case and the art of persuasion that is involved in other civil jury trials moderated by Philip Philbin with panelists David Keyzer, Scott Partridge & Carl Roth.
• Patent Dim Sum. The ultimate Judge’s Panel.  Interactive discussion between attendees and Eastern District of Texas judges on hot topics ranging from infringement and invalidity contentions to MDLs, discovery & damages with moderator Johnny Ward and panelists: Chief Judge Leonard Davis, Judge Ron Clark, Judge Rodney Gilstrap, Judge Michael Schneider, Judge Caroline Craven, Judge Keith Giblin, Judge John Love & Judge Amos Mazzant.

Criminal Law

• eDiscovery and ESI - Panel discussion of the recently released ESI protocol for use in federal criminal cases. Marlo Cadeddu, Northern District of Texas Electronic Discovery Coordinator & Sean Broderick, National Litigation Support Administrator with the AO of US Courts
• Key Supreme Court, Fifth Circuit and ED Texas Criminal Law Decisions of 2011-2012 - Judy Madewell, Assistant Federal Public Defender, Western District of Texas.
• Preservation of Error: Avoiding Plain Error Review.  Discussion of preservation of error during pre-trial and trial.  Judge Jennifer Elrod, Fifth Circuit Court of Appeals; Deborah Pearce & Bryan DeTray, Fifth Circuit Court of Appeals, Staff Attorney’s Office.
• Cybercrimes - This session will focus on federal computer and internet crimes such as hacking, identity theft, cyber-stalking, unauthorized password use, and fraud.  Ken Hawk, Assistant Federal Public Defender, Eastern District of Texas
• Effective Advocacy at Sentencing - Panel discussion of sentencing trends and issues, and how to persuade the Court.  Judge Marcia Crone, Judge Richard Schell & Judge Zack Hawthorn; Malcom Bales, United States Attorney, Eastern District of Texas & Pat Black, Federal Public Defender, Eastern District of Texas.

General Civil Litigation

• Key EDTX non-Patent Decisions of 2011-2012 - Discussion and update regarding recently decided significant decisions from the Eastern District of Texas.  Sean Rommel, Melissa Smith & Michael Truncale.
• Re-Emerging Oil and Gas Litigation - Royalty and working interest disputes and contract cases.  Dick Watt, Watt Beckworth
• Thinking Outside the Box - Developing and defending new causes of action when recovery options are shrinking.  Kurt Kern & Todd Tracey
• Cognitive Biases; A Look at the Science of Persuasion - Stanley Curbo.
• The East Texas Tool Box: What Seasoned Trial Lawyers use to Persuade Jurors.  Judge Robert Parker; Judge Judith Guthrie; George Chandler & Tom Melsheimer

The joint session lunch was an entertaining set of remarks by Rusty Hardin, then it was back to the breakouts.  Following the conclusion of the breakouts there was the traditional brief meeting of the Eastern District bench bar to sentence the new officer and director by acclamation, hear the financial report, and make damn sure Clyde Siebman will stay as next year's bench/bar committee chair.

Bench / bar notes - Judge Rader's remarks

This morning's highlight was Judge Rader singing "Deep in the Heart of Texas" with Eastern District-modified lyrics to a backdrop of Cowboys and Redskins helmets. He then gave a lengthy and informative presentation "Thoughts on the Status and Direction of Patent Litigation in the United States" including distributing a proposed e-discovery model order, which was developed by an e-discovery committee of the Federal Circuit Bar Association. I don't have access to a scanner at the moment but I understand it is on the FCBA's website. There was e-voting on Judge Rader's general concepts, but I have to emphasize not on the specific proposals he advanced. In other words,the e-voting was on general concepts such as the need to look at reducing the costs of e-discovery and the benefits of identifying summary judgments that can help narrow and possibly eliminate cases (see yesterday's post on Judge Davis and mini-Markmans). Specific ideas, such as whether a certain percentage of summary judgment motions ought to be granted, or that the right to trial by jury should be restricted in the interests of our judicial system competing more effectively in the global marketplace or whether the e-discovery proposal was one to be followed in a particular case, district or chambers was not polled - and were the topics of significant discussion in the small groups. One area of discussion I found really useful was Judge Rader's proposal that courts devote some attention to early valuation of cases, possibly using Daubert procedures to narrow the damages issues. I thought that was a good idea, and my small group had an enlightening discussion as to how that could work, as well as some challenges to getting it to work. I look forward to continuing that discussion over the coming weeks and months. I will post later on other panels and will try to catch up on the rest of the meetings later today or tomorrow.

Bench / bar update - working lunches and what is a Texan?

I attended the venue breakout at lunch, which was an entertaining presentation on recent district and appellate case law, followed by a "writ or no writ" quiz asking attendees to decide whether the Federal Circuit should or should not grant a petition for writ of mandamus on a venue ruling. Always fun playing that game standing next to Judges Rader - who deferred to Judge O'Malley. Anyway, a very well done presentation by Eric Findlay and Greg Love. (Attendees please feel free to post comments on the other breakouts). As entertaining as that was, it paled in comparison to the next session, which provided insights on Texas accompanied (I am not making this up) by Texas singer and songwriter Brian Burns on guitar, as well as a writer and a political consultant. I will try to upload some video if I can, but at the moment he is reading Col. Travis' letter from the Alamo accompanied by guitar, and there is not a dry eye in the house (at least from the Texans).

Bench / bar - jurors panel

I don't think any of us on the planning committee realized just how helpful this panel was going to be. Here are some of the highlights. The jurors really liked having notebooks with the patent and the court's definitions. They liked the patent video. Have I mentioned that they think lawyers repeat the same question over and over? They are repeating that complaint over and over. On videotaped witnesses, some had no problem considering it the same as live witness, but others didn't - they felt they were missing important nonverbal information. They didn't like personal attacks by counsel in the courtroom against each other. One juror specifically said that she felt that the defense lawyers in her case talked down to the jury and they didn't like it. Another believed that a lawyer was condescending to the jury - and she remembered that. Several didn't like the lawyer's tone and felt they were being talked down to - they did not like being told what to think. They liked the way they were treated by the court staff and the lawyers. They did want to ask questions during the trial because most said that they had questions during the trial that were not answered. Several said the unanswered questions dealt with damages.

Bench / bar comments - jurors

As I posted earlier, Jennifer and Johnny are putting on a panel of former patent jurors from Eastern District cases right now, with four live and one by phone. They will be asking the panel questions in front of 500 lawyers on the "myths and mysteries" of the Eastern District. News flash: the jurors think lawyers are repetitive.

Bench / bar comments - settlement panel

Great panel of mediators disagreeing with each other about what settles cases. Conclusion is that they are uncertain how much uncertainty helps resolve cases. But certainty helps, and sometimes there's too much and sometimes there's too little. Is the bar open yet? It needs to be.

Eastern District / Federal Circuit Bench/Bar program highlights: Monday Morning, part 1

My review of some of the topics to be covered week after next at the Eastern District of Texas / Federal Circuit bench/bar in Las Colinas continues with the topics up Monday morning before the midmorning break.

The event will be called to order Monday morning by Eastern District of Texas Bar Association President E. Glenn Thames, Jr. (Potter Minton) & Federal Circuit Bar Association President Steven C. Lambert (Foley & Lardner) and Conference Co-Chairs Edward Reines (Weil, Gotshal & Manges) & Clyde Siebman (Siebman, Burg, Phillips & Smith).  They will be followed by welcoming remarks by Chief Judge Randall Rader, U.S. Court of Appeals for the Federal Circuit, and Chief Judge David Folsom, U.S. District Court for the Eastern District of Texas.

The first panel after the event opens Monday morning is An Insider’s View of Best Practices in the Eastern District of Texas and the Federal Circuit with panelists Judge T. John Ward (ED Tex.), Peter Corcoran (Thompson & Knight), Matthias Kamber (Keker & Van Nest) and Larry Phillips (Siebman, Burg, Phillips & Smith). 

Next up is Balancing the Economics of Discovery.  Insuring Access to Documents That Matter While Keeping Justice Affordable, which will be co-moderatored by Judge Chad Everingham (ED Tex.) & Judge Paul Grewal (ND California) with panel members Marla Butler (Robins, Kaplan, Miller & Ciresi), Tina Chappell (Sr. Litigation Counsel, Intel), Timothy Durst (Baker Botts) & Wes Hill (Ward & Smith).

And finally, last before the morning break is Judicial Economy Versus De Novo Review in Claim Construction (now there's a panel title that takes a position!) moderated by Mark Davies (Orrick, Herrington & Sutcliffe) with panelists Judge Kathleen O’Malley (Fed. Cir.), Judge Richard Schell (ED Tex.) and Gary Hoffman (Dickstein Shapiro).

And that gets us to the morning break.  Still five more judges to go before lunch...

14th Annual Eastern District of Texas Bench Bar Conference

The Eastern District had its 14th annual bench/bar conference in Plano on October 20-22, 2010. The actual seminar events started the morning of October 21 with introductions by ED bar president Larry Phillips, conference chair Clyde Siebman, and Chief Judge David Folsom, who welcomed James Brookshire, executive director of the Federal Circuit Bar Association.  Attendance was in the mid-400's, which once again is a record.

The frst panel was on local rules, followed by a panel on expense and delay reduction. Next was "What Do Law Clerks Know That Lawyers Should Find Out?" which I unexpected got to moderate, and enjoyed very much. Aftre the morning break there was a fascinating panel on the interface between social media and the law, featuring Judge Caroline Craven, followed by the blockbuster of the conference "The Heterogeneity of ED Texas. Exposing the Myth of a Homogenized District," featuring presentations by Larry Phillips, Jennifer Doan (not the one at www.jenniferdoan.com), Andy Tindel, Marshall Wood, and an outstanding presentation on the history of the district, literally beginning with trees by Michael Truncale of Beaumont. The lunch speaker on day 1 was Fifth Circuit judge Catharina Haynes.

In the afternoon the conference split into three tracks, patent, civil and criminal. The patent track had sessions on non-practicing entities and alleged infringers, speed and expense, which I enjoyed participating in, a judges' panel, a panel on Twombly, and a presentation on ED patent statistics. The civil track had panels on federal jurisidction, a judges panel, and discovery, and the criminal track had a judicial panel, and panels on sentencing, detention hearing practices, caseloads & trends, CJA forms & payments procedures, and a joint session with civil on "When and Where Criminal and Civil Law Collide". We then had a nice dinner with recognition of retiring judges Earl Hines of Beaumont and T. John Ward of Marshall, followed by the traditional outstanding band.

Friday morning started way too early with a present on venue and mandamus, a panel with all the Eastern District judges in attendance, and a panel on local counsel practices. The conference ended as is traditional with a short business meeting at which Glenn Thames of Tyler was elected to follow Larry Phillips as president.

Eastern District of Texas Bar Association officers & directors

At the recent bench/bar meeting, the officers and directors for the Eastern District of Texas bar association for 2005-06 were elected.  They are:

Michael Smith - President (Marshall)
John Mercy - President Elect (Texarkana)
Chris Coco - Secretary/Treasurer (Beaumont)
Clay Dark - Past President (Lufkin)
Larry Phillips - 3d year Director (Sherman)
Reich Chandler - 2d year Director (Lufkin)
Johnny Ward - 1st year Director (Longview)

Eastern District Bar Association bylaws

Since the Eastern District bar association does not currently have a website, I am posting events and annoucnements regarding its activities here.  Here Download ed_bar_association_bylaws.pdf  is a current set of its bylaws, as amended at the May 2004 bench/bar meeting.