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.

Patent Cases Continue to Fall in 2017 Q1

Ryan Davis has a good article out on the filing stats from Q1 of 2017 by Lex Machina, and it’s more of the same – patent case filings continue to drop both nationwide and in EDTX, with filings in EDTX continuing to drop slightly more.  2017 Q1 was actually the lowest quarter in terms of filings since 2011 (meaning since enactment of the AIA), which is saying something since there wasn’t a preceding quarter event that caused filings to spike (FRCP rule changes in December 2015, patent legislation news – that sort of thing).

In fact, the Q4 spike as a result of the FRCP rule amendments was the last significant bump in filings, resulting in what LM “legal data scientist” (damn, I wish I’d thought of that title) Brian Howard calls the “new normal.”

As we saw last year, filings in the EDTX are dropping slightly more than the national average, with the district’s share of patent cases dropping from 36% to 33%.  Perhaps not coincidentally, Delaware’s share is up from 10.1% in 2016 to 13.8% so far this year.

Capitol Days in Austin

Took a break for a few days this week to go to Austin to work on state legislative issues with some old friends and colleagues, including representatives of the Texas chapters of the American Board of Trial Advocates.  

I unexpectedly got an opportunity to testify on a bill dealing with motions to dismiss at a hearing before the House Judiciary and Civil Jurisprudence on behalf of Tex-ABOTA, and since it was patterned on FRCP 12(b)(6) motions I really enjoyed it.  Fortunately my law school mock trial partner Lin McCraw, who’s serving as president of the Texas Trial Lawyers Association this year testified after me and got everything straight for the members of the committee.

That was the first time I’ve testified before a legislative committee in Austin in exactly 30 years (yes, I am now that old).  I won’t say it was worth the four hour wait, but it could have been worse – the hearing actually went on another three hours after I left.

Visited with several legislators, including my new state senator, former Judge Steger law clerk Bryan Hughes, and my law partner Larry Phillips, who has the pleasure this session of serving as chair of the House Insurance committee (still unclear who he pissed off), and spent a lot of time in conference rooms watching floor debates and committee hearings. Brought back some good memories of my days in Austin during graduate school, especially during a session.  I was watching the House yesterday morning when Chairman King welcomed a group of student to “your Capitol” and that reminded me what a great experience it is as a Texan to see the big beautiful Texas Capitol.

But as I told people on the way out yesterday, being around the Lege in action is sort of like Disneyworld.  It’s a lot of fun for about three days, but then everything starts looking like Mickey Mouse and you’re really ready to go home.  It was very good to head out yesterday afternoon for the Easter break, and I am pretty sure everyone else around the pink dome felt the same way.