I miss Pulp Fiction. I really do. But it provides a really great image for this couple of cases dealing with the issue of when a party does (and doesn’t) have to pay for the cost of certain rebriefing. Our story starts last summer,
There are some loud people in Marshall, and Laura is definitely two of them. And that’s a good thing.
Marshall being Marshall, when I started working with paralegal Laura Shepperd 24 years ago, she was the third member of her immediate family I’d worked with. She helped break me in over the next 10+ years and teach me what would get you killed by your legal assistant, which is what we called them back then, with the exception of Scotty Baldwin, who simply yelled “goddamn Hiser” or, for variety, “Hiser goddamn”. The problem was that anything Scotty said was so persuasive it was like listening to Charlton Heston call for bigger Post-Its as if the fate of the people of Israel depended on it, so I really missed when the old firm moved into bigger offices because you couldn’t hear him hollering for dear, sweet Jean.
Back when we were in high school in Marshall, Laura was active on our school paper, and then went on to pursue a degree in print journalism, writing for The Battalion at Texas A&M University as a student and then briefly as a reporter at the local newspaper. After raising three children and working twenty years as a legal assistant, she left legal work and began focusing on her writing. I recently finished her debut, It’s Not All Rainbows and Ponies, a memoir about her treatment for alcoholism several years ago. You can read about the book in the Marshall paper here, including an interview with Laura, but I wanted to take a few minutes to focus on her book and its subject of treatment.
It’s not news that substance abuse, including alcohol, is an issue in the legal profession – it’s something that the State Bar of Texas works very, very hard to help lawyers with through the Texas Lawyers’ Assistance Program. One thing Laura’s book points out is that it isn’t just lawyers that suffer from alcohol abuse – the people around lawyers face the issue as well, including lawyers’ staff and families.
What her book does is detail her treatment for her problem – her trip to rehab, her experiences in rehab, and her successful return to sobriety. What the book does not cover, as the Marshall paper inadvertently implied, is her successful treatment for breast cancer, which she was diagnosed with just days after the book was published last year. But for her, the experiences were related. “I definitely think overcoming my addiction helped me deal with breast cancer,” she has said. “My faith is so strong. My faith grew so much in rehab. When I was diagnosed, I knew God was with me and I would be OK no matter what.” So a little known side benefit of rehab – it helps prepare you for cancer.
So why is this book worth your time? First, it’s a good read, and second – we all need to know this.
The first thing that’s important to know about Laura here is that she can flat write. Reading someone’s experience in rehab is not an intuitively pleasant experience, but she really puts you there. She tells you – skillfully – what she was thinking and feeling, and not a page went by that I wouldn’t see a turn of a phrase and think “I wish I’d said that.” She tells the reader what it was like, and gives the reader an understanding what rehab was like – the detox, the effect on her daily life, the emotions of leaving her family – and if you know Laura, you know that her family is even more important to her than the Fighting Texas Aggies (whoop!) and the Dallas Cowboys. (Personally, I think she’s faking the Texas Rangers thing, so I’m not including that). When you read history like I do, sometimes you’re forced to endure some really bad writing in memoir form by a lawyer or a soldier or politician just because you want to know what they did. This is not that at all – it’s the Memoirs of Ulysses S. Grant of rehab experiences. (Trust me – that’s high praise). You’ll learn about rehab, but it’s not unpleasant, and what becomes clear not far in is that there is great love and pride in the experience – love and pride that she and others carry away to help them in their lives back home.
You Need to Know This
And that’s the other reason why you need to read this. Whether you are contemplating seeking assistance yourself or advising or counseling a friend or family member that is, this gives you an insight into what it is like. One thing that being around the State Bar has taught me over the last twelve years is that we serve our profession better when we can help each other. Being able to counsel a colleague about treatment is something that ought to be in all our toolkits. If we see a friend or colleague in need, we know to know what they can do to get help – see TLAP supra – and be able to talk knowledgeably about the process.
Why is that important?
Because deciding to get treatment in rehab is a scary, scary thing, Laura tells us. It’s so scary I don’t see how she brought herself to do it. But the scariest thing, she makes abundantly clear, is the uncertainty – the not knowing what’s going to happen next, and what to expect. When her daughter carried her to rehab and dropped her off, she had no idea what it would be like. But after reading this book, we do. We know that nothing that happens there is something to be afraid of, and we understand from someone who’s been there that there is nothing as bad as doing nothing. It reminds me of what Sting once said in a slightly different context. “Marriage,” he told Rolling Stone, “is a hard, hard gig. But the rewards are infinite.” (Nobody tell my wife I analogized marriage to treatment for alcoholism, okay?)
Funny as Hell
The other thing that you have to know about Laura is that she is funny as hell. At least three times a page she would make some smartass remark to herself and I’d smile because I knew this wasn’t taxi wit – I’d heard her say it out loud before in real time. If she was going to be in rehab, there was going to be humor found if it had to be at knifepoint. My absolute favorite part of the book was when she decided to make a hobby out of harassing this one nurse every time she saw her. If her pills were not right – it was that nurse’s fault. If something wasn’t right with her blood pressure – well, you know it only happens when I see you Miss Louise …
It may be an East Texas thing, but I once heard an outsider observe that “the first thing you say about someone is always bad,” and if we like them, we do it to their face. I remember Judge Hall was a master of it. If he wasn’t complaining about you, it kinda hurt your feelings. Laura loved the people she was around – but she still gave them a lot of shit. Reminds me of a sweatshirt she once got her boss that said “I Yell Because I Care.” It’s like that. Or as Scotty would have put it, “Hiser, goddamn.”
You’ll like it, and you’ll learn something useful. What more could you ask for?
With trial only a few weeks away in this case, the Court ruled on Defendant’s corrected motion to exclude portions of the plaintiff’s damages and technical experts, which arguing that their opinions are insufficiently reliable under FRE 702. The Court’s ruling on the motions sets out the relevant considerations for experts, and explains its rulings in some detail. They also include, candidly, interesting holdings on what constitutes expert versus lay testimony, and when a defendant’s gross sales numbers might be admissible.
This isn’t exactly EDTX news, but the Supreme Court just eliminated laches as a defense in most patent cases, noting that Congress had provided a statute of limitations for patent claims, and that precluded a laches defense. The decision wasn’t unexpected, since it had held the same thing for copyright cases in 2014. In fn. 4 of the opinion, the majority rejected the dissent’s argument that, insofar as the lack of a laches defense could produce policy outcomes judges deem undesirable, there was a “gap” for laches to fill, notwithstanding the presence of a statute of limitations, concluding that that was precisely the kind of “legislation-overriding” judicial role that it had disclaimed in the copyright laches case in 2014. See Petrella, 572 U.S. at ___ (slip op., at 14). 15-927_6j37 (1)
Patent cases often involve production of confidential technical information, which is then reviewed by another party’s experts in preparation for trial. Occasionally, an expert’s work for a competitor causes issues with determining whether the expert can review certain information. That was the case recently in a EDTX case involving electronic products. In that case
Defendants sought a stay pending IPR. Judge Mitchell reviewed the relevant factors and determined that a stay was not warranted. First, there was no showing of any case-specific prejudice. Second, the defendants’ delay in filing their IPR peition weighed against a stay, as the motion wasn’t filed until shortly before claim construction briefing was to begin. Third, and most importantly,
I wouldn’t call Professor Arthur Miller’s often-quoted phrase more elegant, but it is clearly better that the mere “Twiqbal” at describing the effect of his former student Judge Payne’s report and recommendation last week in Bartonfalls v. Turner Broadcasting Systems, Inc., 2:16cv1127, which recommended dismissal of the plaintiff’s claims under three patents against 11 defendants, with prejudice, i.e. no opportunity to replead, using only four paragraphs of analysis.
But the grounds for the dismissal were unique. In this case
Serially-sued patent defendants often want to know why they can’t just get a case stayed so they can show the Court that it’s obvious that they don’t infringe. Well, here’s how you do it.
A few months ago I posted on an order granting a motion for an early claim construction on three terms appearing in the asserted claims. “Defendants allege a pattern [by plaintiff] of serially filing groups of cases and then settling those cases before the Court has had a chance to construe the asserted claims,” Judge Payne wrote. (Emphasis added). “The Court finds that determining the meaning of the three terms identified by defendants as early as possible may aid in the just and speedy resolution of this in future cases in which [the plaintiff] asserts the patents.” Accordingly, Judge Payne granted the request for early claim construction and ordered the parties to jointly submit a briefing schedule. The court deferred the issue of whether to stay further discovery and proceedings until it had established a workable early claim construction briefing schedule, but did later stay the case.
The post also explained the history of the “mini Markman” procedure, and cited it as an example of courts finding similar opportunities to achieve efficiencies in addressing repeat issues through special procedures or processes – in much the same way that in my hobby of modelbuilding I find opportunities to achieve efficiencies by using templates or jigs to handle repetitive tasks, using my scratchbuilt 1/200 LUT. So what you’re wanting to know before we talk about mini-Markmans and stays is, of course, “Michael, how’s that scratchbuilt 1/200 LUT coming along?” Well, thanks for asking. It’s coming along pretty well – I’ve finished the levels, and am working my way up the tower adding detail and researching the crane on top (did you know it was made by Colby Crane of Seattle – a subsidiary of Lockheed Shipbuilding?).
But back to the mini-Markman. Judge Payne conducted the hearing yesterday, and the order was out before lunch today. The order, and my analysis, follow (no more modeling updates, I promise):
Erfindergemeinschaft UroPep GbR v. Lilly is closing in on trial, and on Monday visiting Judge William C. Bryson of the Federal Circuit, who as readers know, maintains an active docket of district court patent cases in Marshall and is formally invested as an honorary trial judge in the EDTX with a certificate and everything, recently issued a 13 page order ruling on the parties’ motions in limine. (Ed. note: “Erfindergemeinschaft” does not, as you might think, mean “find the mine shaft”, but instead roughly translates to “inventor’s association”, which makes sense since the company was founded by research scientists at Hannover Medical School. No clue what “Uropep” means in this case involving a drug used to treat erectile dysfunction, but I’ll keep looking). The holding that has the attention is the last paragraph, in which Judge Bryson decided to exclude UroPep from referring to the “presumption of validity”. He notes that there are cases going both ways on this point, and concludes that that simply means that prohibiting the use of the phrase would not be error. Having looked both ways, he explains his ruling: “In the Court’s judgment, the use of the phrase “presumption of validity” would add little to the jury’s understanding of the burden of proof on the validity issues. Moreover, the phrase might be confusing to the jury, to the extent that the jury is required to consider both that phrase and the Court’s instructions on the burden of proof. At minimum, the use of the term “presumption” would require a further definitional instruction by the Court, without leading to any greater insight on the jury’s part as to the nature of the burden of proof on the validity issues. Accordingly, the Court will exclude the use of the phrase “presumption of validity” and instead will address the burden of proof in its instructions to the jury.” 237 – Uropep
Speaking (indirectly) about trial practice, Mark Knopfler that famously observed “some days you’re the windshield; some days you’re the bug.” What’s a morning catching up on recent cases without watching another argument for (or against) personal jurisdiction and plausibility play out, and see where but for the grace of God, I go … at least until later this afternoon. In this case, the defendant asserted a motion to dismiss for