Eastern District of Texas Federal Court Practice

"Dispositive Motion Practice" paper - request for help

Need some help from readers.
I have been asked to present a paper on dispositive motions at the upcoming State Bar of Texas Federal Court Practice seminar in Dallas on May 15, 2009.  The topic is a routine one, but I wanted to handle it a little differently, and use dispositive motions as an example of how motion practice differs between state and federal courts, and really more importantly, how it differs among federal courts.  We all know  that most federal districts have different rules on these types of motions, and nine years chairing our local rules committee has taught me that there are significant judge-specific differences as well.  Which brings me to my point.
So that I can illustrate the breadth of differences in the rules in this area I'd really appreciate it if readers would recommend to me (e-mail the rules, if you have them) the most lengthy, detailed, (some might say even compulsive/obsessive rules) you've ever seen a federal judge impose on dispositive motion practice (such as summary judgment motions, obviously).  While some of the Eastern District judges have more requirements than others, none are what I'm looking for - I want the most arcane, far-out, improbable and bizarre requirements you've ever seen (regrettably, our local judges aren't nearly eccentric enough on this subject).  Don't have to be from Texas, either - feel free to nominate your favorite jurist from anywhere.  (It would perhaps be small of you to consider this your chance to get back at a judge for taking you to task for not complying with such rules, but that's your problem, not mine).
As I suspect some of these nominations will accompanied by requests for anonymity on the part of the nominating attorney, no need comment to this post - just e-mail me at michaelsmith@siebman.com .

"Intellectual Property Litigation" - Winter 2008 SBOT Litigation Section "Advocate" magazine

You can tell how far behind I am when I post on issues of a quarterly magazine back to back.  The latest Advocate issue, which I just saw yesterday in our Litigation Section meeting, is "Intellectual Property Litigation" and has sections on patent, trademark, copyright, and trade secret law.  The magazine is available only in paper form to subscribers at the moment - when the next issue comes out this one will be posted online.
The patent law section contains articles on the scope of patentability, patent remedies, reexamination, and a feature article The Eastern District Phenomenon by former Eastern District Chief Judge and Fifth Circuit Judge Robert M. Parker.  Judge Parker's article contains useful numbers of patent verdicts, post-verdict rulings, filings, and others items of interest to at least one or two people.  There's also an article (which I haven't read yet) on recent Supreme Court "restrictions on patent rights and remedies" that looks like good reading.
Just another reason to join the Litigation Section...

"Five Year Retrospective on House Bill 4" - Fall 2008 SBOT Litigation Section "Advocate" magazine

I try to post on the great work that editor Lonny Hoffman and his editorial board are doing with the Litigation Section's quarterly Advocate magazine.  They hit another home run with the fall 2008 issue, which is a five year retrospective on House Bill 4, the far reaching Texas tort reform legislation passed - five years ago.  Five years ago, when I was on the editorial board, we put out an issue summarizing and analyzing the reforms (I did product liability) which was the first comprehensive analysis of what had happened and what the likely effect would be.  What this issue does is look back at five years under the new law.  The above link takes you to the actual issue online, but here are the articles:

The Purpose, History and 5 Year Effect of Recent Lawsuit Reform in Texas by Joseph M. Nixon
A Word From the Opponents by A. Craig Eiland
Impact of the 2003 Texas Medical Malpractice Damages Cap on Physician Supply and Insurer Payouts: Separating Facts from Rhetoric
HB4 After 5 Years: Business Perspective
Medical Malpractice: Plaintiff's Perspective 
Medical Malpractice After 5 Years: Defense
Class Actions in Texas after HB4 and CAFA
In Memoriam: Texas Class Actions
Effects of Punitive Damages Post HB4 
Multidistrict Litigation Experience 5 Years Later: Plaintiff 
Multidistrict Litigation From the Defense
Products Liability After HB4
Evidence & Procedure Updates 
From My Side of the Bench by Judge Randy Wilson

I commend the issue to you - it's an invaluable perspective on both the caselaw since the bill passed, as well as the real effect it's had on the legal practice in Texas.

"Intellectual Property and Patent Litigation Update" - SBOT Litigation Update seminar

I presented this morning at the State Bar's annual Litigation Update seminar in San Antonio on "Intellectual Property and Patent Litigation Update".  As my laptop ate my slide show, I just went through the paper I sent in last month, with one big addition being In re TS Tech. 
But there were a couple of useful additions based on my morning scan of the patent law blogs.  Patently-O had a timely post on the BPAI's decision in Ex parte Cornea-Hasegan (BPAI 2009)(non-precedential) in which it held that "a processor" is not a "particular" machine for purposes of meeting the patentability test of In re Bilksi.  It's always fun to tell a room full of non-patent lawyers trying to follow patent cases that a general purpose computer is not a machine.  I followed up with how "only if" is too complicated for jurors to understand without help.  That's always good for a (somewhat nervous) laugh from a lay attorney audience.  
Another useful tidbit for the presentation was Peter Zura's post on his 271 blog regarding yesterday's release by a group of U.S. manufacturers of research entitled “The Likely Adverse Effects of an Apportionment-Centric System of Patent Damages.”  That survey, by Case Western economist Scott Shane gave some numbers on the effect that damages apportionment provisions in patent legislation would have.  I am not vouching for or against the study, but it's useful when discussing these provisions to be able to provide some metrics.  Previously, for example, in trying to quantify the effect of various caselaw and proposed statutory changes I've referenced a general railbird opinion that KSR may have invalidated as much as 60% of existing patents.  Given that I can't even remember who told me that, much less how reliable an estimate it is, it is useful to be able to say that there's research indicating that a damages apportionment provision would result in:

1. Reduction in overall U.S. patent value of between $34.4 billion and $85.3 billion.

2. Reduction in value of U.S. public companies of between $38.4 billion and $225.4 billion.

3. Reduction in R&D of between $33.9 billion and $66 billion per year.

4. Between 51,000 and 298,000 U.S. manufacturing jobs put at risk.

Again, I'm not endorsing or disagreeing with this report - just saying that it's a useful addition to the debate on the advisability of apportionment of damages provisions beyond what juries are currently instructed.

"Practicing in Federal Court: 2008 Update" - ED Tex Local Rules meet Origami at a Northeast Texas Association of Paralegals meeting

   This afternoon I spoke at the NTAP monthly meeting on the subject to Practicing in Federal Court - 2008 Update, mainly about recent amendments to the local rules as they affect paralegals.  While preparing my talk it occurred to me that the papers attendees get at these meetings really aren't very useful when they get back to their desk.  I thought maybe I could do something about that, so I prepared an oddly arranged double-sided handout and at the end of the presentation showed the attendees how to fold it into a little origami box for their desk that on one side has my personal checklists of the requirements of the new certificate of conference and application for extensions of time to answer rules, on the sides has phone numbers for all the ED clerk's offices, and all the necessary websites (ED Tex clerk, PACER, CM/ECF, Fifth Circuit), and on the bottom a concise directory of all the ED Tex judges by division with their secretaries, phone numbers and law clerks (the latter only for the NE Texas divisions - I didn't have legal size paper).  Special thanks to my paralegal Pam Matthews for advising me on what information paralegals would actually find useful on - well, on whatever this thing is.  It also has the EDTexweblog banner, the ED Tex seal and a little cartoon of a lawyer and a judge, so it's functional, informative, and entertaining.  How many CLE papers can you say that about?
No, don't ask me for copies - outside our firm's offices the only people with copies (and, more importantly, instructions on how to make the box!) will be the NTAP members who showed up for my talk despite the rain this afternoon.
And no, I really don't know where I come up with these ideas either.  I have three boys (ages 9, 6 and 6) and they all think like this too.  God help my wife.

Current issue of State Bar Litigation Section "The Advocate": Criminal Law Issues for Civil Litigation

 I just finished reading the current issue  of the Litigation Section’s outstanding quarterly “report” The Advocate and wanted to mention some of the articles that might be of interest to readers.

As Editor in Chief Lonny Hoffman notes in his editor’s comments, the idea behind this issue was to give civil practitioners some general guidance on criminal law issues that could potentially touch the practices of civil litigators.  “Like all of our issues," he writes, "this symposium on criminal law issues for civil litigators can sit on your shelf to be called upon whenever the need arises.”

The issue opens with an article by Northern District of Texas US Attorney Richard Roper and former Eastern District U.S. Attorney Matt Orwig on Successfully Navigating Parallel Criminal and Civil Proceedings.  There are also useful articles, Criminal Law for Civil Litigators by John Kinchen, The Preservation of the Age Old Attorney Client Privilege by Paul S. Atkins, Fifth Amendment Issues in Civil Litigation by Perih Alkas, and Criminal Ramifications of Sarbanes Oxley  by Chuck Meadows. 
Other articles include Civil Litigators Beware:  Assisting Corporate Clients to Avoid Potential Criminal Liability Exposure in the Workplace by Victor Wright, Corporate Crimes by Robert J. Susman and Gregory S. Saikin, The Unethical and the Criminal by William J. Chriss, and a timely article, Your Signature on Pleadings Landing You Under Indictment?-Don’t Let it Happen to You by Lori Ordiway and Cory Carlyle.  That article comments on the lessons to be learned from the Vasilas case, which was recently heard by the Texas Court of Criminal Appeals.

 

Finally, under the category of “Additional Contributions” there are articles from My Side of the Bench by Houston Judge Randy Wilson entitled “Close the Gates” dealing with impeachment,  the usual evidence and procedure updates by Luke Soules and Robinson C. Ramsey, and an excellent article How to Save Our Courts by Justice Sandra Day O’Connor.

I commend The Advocate to any Texas civil practitioner.  The Litigation Section’s website is at www.litigationsection.com and while the current issue of The Advocate is available only to Litigation Section members, past issues  are available online on the section’s website.

"Patent Litigation - A Practitioner's Perspective" - Door County WI IP Academy

Been on the road a lot lately speaking on patent litigation topics.  Most recently last Friday in Sturgeon Bay, Wisconsin at the Door County Intellectual Property Academy, sponsored by the State Bar of Wisconsin's IP Section.  Sturgeon Bay, for those of you that haven't been there personally, is where you end up if you fly into Green Bay, and then drive northeast until you hit Lake Michigan.
Now you might be asking yourself why Door County, Wisconsin, would have an IP Academy, but being as I'm from Marshall, Texas, I don't.  I just accept that good things happen in small towns, and appreciate the chance to talk to some lawyers trying to figure out how to create and maintain a good patent case docket..
I missed the first day hanging out in airports (I highly recommend Terminal C in Cincinnati, where the Outback Steakhouse provides real silverware and an unparallelled view of the backsides of big jets - sort of like Atlanta after a visit from a can opener), but thoroughly enjoyed the second day, especially the judges panel "What Judges Want You To Know About IP Cases" with Judge Barbara Crabb of the Western District of Wisconsin, and Judge William Griesbach of the Eastern District of Wisconsin, moderated by Meredith Addy of the Brinks Hofer Gilson & Lione firm.  Judge Crabb, as many readers know, knows a thing or two about the constellation of patent cases (pun intended), and I had an enjoyable visit with both judges in the hall before their talk talking about how the Eastern District of Texas judges manage their patent dockets.  Judge Crabb's comments on how she handles her patent cases were quite similar to what Texas practitioners hear from our judges - she handles them just like any other case, and she encourages lawyers to simplify their cases.  She also seems to be quite no-nonsense about conduct in her court, and had a few good stories for the audience.  They succeeded in covering about half of my paper for me, which saves time, I guess.
I spoke last on "Patent Litigation - A Practitioner's Perspective" - I'm not posting the article at this time as I am in the process of revising it and hope to publish it someplace in the near future (if anyone knows of any publications that might be interested in something like this, let me know).
Once again, I appreciate the hospitality of the Wisconsin bar on my brief visit, particularly Amy Lindner, chair of the IP Section of the State Bar of Wisconsin.  I really enjoyed my visit, and hope I left an interesting thought or two behind.

"Starting a New Law Office: A Checklist" - Texas Bar Journal

My article "Starting a New Law Office: A Checklist" is the cover story and lead article in this month's Texas Bar Journal.  TBJ lent me the artwork from the article to use in the slide show for the accompanying webcast last Wednesday - I'll post a link to the webcast as soon as it's up, for those interested see it live (including the fire alarm in the State Bar building that ended it about 30 seconds early!)
I appreciate TBJ's giving me the opportunity to share what I learned starting my new office back in January, and hope the article is useful to practitioners out there who are thinking about doing the same thing.  As I say in the article, there is a lot of good literature out there about opening your own office, but what I thought would be helpful is a true checklist, pointing out not just what needs to be done in a more or less exhaustive fashion, but also in what order.

Patent Reform Act - presentation at TADC seminar

This Thursday I'll be in Dallas speaking at the Texas Association of Defense Counsel's 2008 Intellectual Property Seminar at the Belo Mansion (home of the Dallas Bar Association).  My assigned topic is "Everything You Need to Know About the Patent Reform Act."  The lineup for a seminar looks like a good one - here's a copy of the brochure Download Brochure.pdf

"Intellectual Property Causes of Action" - SBOT Causes of Action seminar

I'm course director for the State Bar's Causes of Action seminar again this year, and worked the Dallas session last Thursday and Friday at the CityPlace conference center (great room but enormously confusing layout otherwise).  That included reprising my 2006 "Intellectual Property Causes of Action" paper from 2006.  As I told the crowd, I had had to make a lot of changes to the patent section of the paper since I last gave it in 2006, what with eBay, In re Seagate and all the other recent decision drastically changing the landscape of patent litigation.  I must have gotten them right because David Donaldson of Graves Doughtery (who was speaking on libel and slander) was all but flashing on Bic lighters in the back row as I went through the recent caselaw changes.   (I'm not quite sure why he was so excited, but I could see his head bobbing up and down all the way through my talk).
The COA road show next moves to Houston on May 15-16, with a video reprise in Austin on July 10-11.  If you're in need of up 11.75 hours of MCLE credit, you can sign up here - you get a free O'Connor's Causes of Action book, and as most Texas practitioners I know will tell you - it's even better than the O'Connor's Federal Rules and the picture on the back cover is better looking (not that I'm contractually obligated to say that or anything).
Seriously, this year we have a really outstanding lineup of speakers, and no one practicing in Texas ought to be without the COA book.  It's an enourmouse time-saver when researching whether you can bring some kind of a case on behalf of a client, or what defenses you can assert to a claim.