Second jury (employment discrimination) is back

A Marshall jury in Judge Gilstrap’s temporary courtroom in the historic county courthouse returned a verdict in favor of a Kilgore mail carrier yesterday in a civil rights employment case, determining that she had been fired for reporting that a black supervisor was mistreating the white female employees.  The trial began on Wednesday and finished yesterday.  The jury awarded $250,000 in damages for mental and emotional distress. As expected, that’s two down, with the antitrust case before Judge Schroeder resuming next week.

First jury (patent infringement) is back

The Marshall cases in trial before juries this week are actually an antitrust, an employment, and a patent case.  The patent case before Judge Bryson came back with a verdict for the plaintiff of $20 million Friday evening, breaking the 3-3 tie we’ve had thus far this year in patent verdicts.  Congratulations to the plaintiff’s local counsel, and … well defendant didn’t have any local counsel I can send out sympathies to. The case is one that I’ve posted on a couple of times, involving 

Triple-tracking jury trials

“Time is the quality of nature that keeps things from happening all at once.  Lately it doesn’t seem to be working.” 


It’s a busy week in federal court practice in Marshall this week, with Judge Gilstrap, visiting Judge Schroeder from Texarkana and visiting Judge Bill Bryson from the Federal Circuit all conducting jury trials, forcing Judge Payne having to run up to Texarkana yesterday to find an available courtroom for a bench trial.  Not all are patent cases – there’s at least an antitrust in there somewhere, as well as a trademark dispute.

When we have three jury trials going on, one of the judges decamps across the street to the historic 1901 Harrison County Courthouse,
which the county makes available for overflow trials (I had three patent trials in it summer of 2012, and it’s an incredible space to get to work in).  

As the photos show, it’s obviously primitive accommodations, but we make do.

In addition, the timing worked out for all the judges to make last night’s meeting of the T. John Ward Inn of Court at our usual location, the Country Tavern outside Kilgore, where we heard from former U.S. attorney Malcolm Bales (who took the picture at left of the somewhat perplexed patent lawyers listening to his talk about these “criminal” cases they’ve heard about on TV).  Great stories and insights on his 29 years at the Department of Justice.

But the high point of the evening for me was when Judge Bryson was quoted as having analogized the job of a trial judge to fighting your way through a jungle filled with terrifying beasts, and his day job as an appellate judge as being better analogized to fighting your way through a natural history museum.

The bench trial finished yesterday, two of the jury trials should finish today, and Judge Schroeder’s is expected to continue into next week.

Clash of the 101 Motions: Motion to Dismiss Claims Versus Motion for Summary Judgment as to 101 Defense

Although most 101 defenses are raised via motions to dismiss under 12(b)(6), a few are brought under 12(c), and more than a few are either filed in or converted to the context of summary judgment.  But this case raises an interesting twist with the defendant seeking dismissal on 12(b)(6) grounds and the plaintiff seeking summary judgment that the 101 defense is without merit.  So let’s see how that worked out for them.

Whither High-Volume Plaintiffs? Significance of 2017 1Q Statistics for EDTX at a Glance

I was studying the underlying charts for Lex Machina’s 2017 1Q report of filing statistics, and found one chart that I think summarizes the “new normal” better than any other – the 2011-present breakdown of filings by high volume/low volume filers.

High volume filings spike in EDTX almost gone

As the top chart notes, the spike in high volume filings in the EDTX that has been prominent since enactment of the AIA has now disappeared almost entirely, with filings down dramatically in Q1.

Why are high volume filers leaving EDTX?

Interestingly, high volume filings are essentially flat elsewhere, which raises the question (if you hadn’t been reading this weblog) why high volume filings are down locally, but not nationally.  Look at the filing trends after the EDTX opinions awarding almost $400,000 in Section 285 fees in eDekka in January of 2016 and over $500,000 in Iris Connex in January of 2017.  Any questions?

Low volume plaintiffs up overall in EDTX & Delaware

Interestingly, low-volume plaintiffs are down locally this quarter, but still up overall over the last couple of years, which is similar to what Delaware is seeing – low volume plaintiffs appear to be seeking both districts out at the expense of other districts.  I tend to believe that this is because of the courts’ expertise in the subject matter, or at least because of the predictability of the EDTX and DDel districts’ judges’ rulings on recurring issues.