Judicial Orders Providing/Encouraging Opportunities for Junior Lawyers

One of my favorite sayings is that “the work teaches you how to do it.”  Most of the time I think of that it’s when I’m trying to improve my woodworking or modelmaking skills, or teaching one of the boys how to do something – as with Parker here learning how to drive screws in the workshop using a socket screwdriver.  Understanding how it works isn’t the same as learning how to do it so that at the end of the operation you, the screw, and the workpiece are all still on speaking terms.  And in my experience the best way to learn is to take a handful of screws and just start learning how best to insert them while Dad is looking the other way.  It’s not hard to do – but initially it’s hard to do right.

One of the ways that translates in the practice of law is the overriding importance of trying cases before a judge and jury as an indispensable tool in developing as a trial lawyer.  I will never forget how suddenly clear the whole case became after my first solo trial in district court.  As I was packing bags after obtaining a win on liability but a loss on the amount of damages, I realized that the case wasn’t about all the things I had been worrying about, and was instead about just a few things – witness credibility being at the top of the list, but that’s a different post.  But I’d never have realized that if I hadn’t actually tried the case and seen firsthand in a case I prepared what mattered and what didn’t.  Those don’t just teach trial skills – they teach lawyers what matters in discovery and what doesn’t, and that makes future cases far easier and less expensive to develop.  We’ve all seen discovery fights where both sides are burning enormous resources over obtaining documents that the more experienced lawyers know will never see the light of day in court, nor influence the case’s settlement value.

In recent years, things have gotten decidedly worse for younger lawyers.  Fewer and fewer trials are taking place, and even hearing slots to hone argument skills before a real judge are scarce.  In an effort to remedy that for next gen lawyers, groups such as the ChIPs Next Gen Lawyers Committee are working to encourage opportunities for junior lawyers.  ChIPs is a nonprofit corporation dedicated to advancing women at the intersection of law, technology, and regulatory policy, and its Next Gen Lawyers website contains a summary of judicial orders providing or encouraging opportunities for junior lawyers, including orders from the Eastern District of Texas.

These orders get across what we hear from many judges – they are willing to give young lawyers a chance to argue motions and are open to a number of different ways that that can be done.  The orders show a wide range of tactics and incentives that help lead lawyers and clients provide younger lawyers with the opportunity to take speaking roles at hearings and trials.

The summary document can be downloaded here:


or accessed here, where you can also find copies of the orders.

If you are aware of additional orders or initiatives, please email JBP@chipsnetwork.org.

ChIP’s Next Gen Committee consists of:

  • Kathi Vidal (Lutton), Fish & Richardson (Lead)
  • Judge William Alsup, Northern District of California
  • Natalie A. Bennett, McDermott Will & Emery
  • Judge Christopher J. Burke, District of Delaware
  • Isabella Fu, Microsoft
  • Judge Paul Grewal, Northern District of California
  • Jessica Hannah, Apple
  • Karen Keller, Shaw Keller
  • Noreen Krall, Apple
  • Rachel Krevans, Morrison Foerster
  • Judge ​Barbara M. G. Lynn, ​Northern District of Texas
  • Julie Mar-Spinola, Finjan Holdings, Inc.
  • Sonal Mehta, Durie Tangri
  • Judge K. Nicole Mitchell, Eastern District of Texas
  • Judge Jimmy Reyna, Court of Appeals for the Federal Circuit
  • Gabby Ziccarelli, Blank Rome LLP

2017 Eastern District of Texas blog mugs

Individual subscribers have started receiving their 2017 weblog mugs commemorating the year’s most notable development in patent litigation, the U.S. Supreme Court’s decision in TC Heartland.

Of course, recognizing that the Court’s decision might not be everyone’s cup of tea, so to speak, the reverse of the mug provides readers with the ability to customize it to reflect their preferences.

Again, I have greatly, greatly enjoyed writing for subscribers this past year, and look forward to many years to come.  If any nonsubscribers want to get a mug, we have some extras, so email me and let me know if you want one while we still have them.  They’re $15 plus $10 shipping, but if you can pick up (or I can drop off – I have hearings in Marshall and Tyler this week) we can skip the shipping.

Federal Circuit affirms EDTX “stop instruction”

The conditioning of a jury question on an affirmative answer to a prior question is called a “stop instruction” because it explicitly tells the jury to “STOP” if it found “no” to the prior question.

A common example is an instruction to the jury not to answer a question asking if the patent claim is invalid if it just answered that the claim is not infringed.   That isn’t the case in all trials – if it were then a no claims infringed / no claims valid verdict wouldn’t be possible, and most years that is either the most or the second most common single verdict locally.  And it’s the most common defense verdict, certainly – for example in 2017 of the five noninfringement verdicts where invalidity was also submitted, the jury found the claims invalid in four. (It also found the claims invalid in a fifth case where the claims were infringed).

Last week the Federal Circuit addressed this issue in a case from Judge Gilstrap’s court and affirmed the court’s use of – and later enforcement of – the “stop instruction” under the interesting facts of that case.

Exceptional Case Finding Sought After Summary Judgment of Noninfringement

The defendant in this case won a summary judgment of no infringement and asked the court to declare the case exceptional under 35 U.S.C. § 285 and award $700,000 in attorneys’ fees.  The court’s resolution of the motion is yet another data point showing what conduct by a serial filer/bulk filer/ high volume filer is sufficient to trigger liability under Section 285.