2018 EDTX verdicts versus 2017 – year to date

I just posted on Friday’s Kaist verdict.  For those keeping track, that’s two plaintiff verdicts and two defense verdicts in patent cases thus far, with plaintiffs going 1-0 in Tyler and 1 out of 3 in Marshall.  We are not quite at the halfway mark for the year, but we’re close enough that I can provide some comparison between last year and this year as far as verdicts numbers and outcomes.  (Spoiler alert – the result was 50/50 at this point last year as well, with the tiebreaker going to the defendant on damages).

Law360 Intellectual Property Editorial Advisory Board – recommended topics

As I posted a few weeks back, I was named to the Law360 Intellectual Property Editorial Advisory Board earlier  this year.  Advisory board members are asked to identify specific, major trends, cases, or issues of importance in our practice area to help it plan Law360’s future coverage, and yesterday we had a lengthy call to discuss possible topics. (Spoiler alert: Section 101 is apparently still a big deal).

I won’t go into the topics suggested by other members or everything that I raised, but did want to note some of the topics that might be of interest.  Especially given that trials, especially in patent cases, are rarer and rarer, I thought that topics dealing with trial preparation and practice would be of interest to readers.  I think they’d break down into two broad categories:
  1. “how to/best practices” articles for lawyers on a discrete subject; and
  2. articles on trial court practices, especially in patent cases.
The latter is more something that the court would do, while the former is what lawyers should learn how to do.  (Candidly, these are the topics I speak at at seminars and seem to generate the most interest).
Below is a rundown of the numerous specific topics that might be of interest under each.  If readers have suggestions as to additional topics, please let me know and I’ll forward them.  Again, the advisory board provided an enormous list of really great topics highlighting cutting edge issues in IP, so if your interest is in reading more about what is going on relating to Section 101, trust me, they know that.

2018 Tex-ABOTA awards – Jurist of the Year & Champion of Civil Justice

The 2018 Tex-ABOTA Roundup ended Saturday night in Santa Fe with the traditional awards recognizing EDTX Judge Gilstrap as Tex-ABOTA’s 2018 Jurist of the Year, and as Champions of Civil Justice Debbie Keen and Dr. Joyce Johnson.  The Dallas chapter nominated Ms. Keen, but when we learned she’s actually from Frisco, which is in the EDTX, we adopted her as well.  

The East Texas chapter’s nominee Dr. Johnson of Stephen F. Austin State University’s Pre-law Academy could not be present because she was putting on the program for which she won the award, so her acceptance was a brief video.

The look on her presenter Rusty Phenix of Henderson’s face as her video played says it all.  Everyone from East Texas was puffed up like a toad we were so proud.  And of Judge Gilstrap too, of course.

Tex-ABOTA – 2018 Santa Fe Roundup – part 5 – Cliven Bundy case & effective trial lawyer tips

United States v. Cliven Bundy – Bret Whipple

Next up was a very interesting presentation on the Cliven Bundy case from Nevada by Mr. Bundy’s lawyer, who explained the issues in the case, including the role played by Joe Frazier and the desert tortoise

The Effective Trial Lawyer – Richard Mithoff

As you can tell, this event is unusual as CLE in that it doesn’t contain a lot on how to practice law more effectively, and instead more on interesting applications of the law. To do otherwise with this crowd would be sort of like putting on a seminar for NFL players on how many yards are necessary for a first down.

But even NFL players can learn from  a Hall of Famer, so every year we have a couple of presentations on how to do our jobs better from superlative examples of our profession, like Richard, who is, I must point out, a former law clerk to the late EDTX Judge William Wayne Justice.



Tex-ABOTA – 2018 Santa Fe Roundup – part 4 – Legislative Update & ABOTA President

Day 2

Noticeably absent from yesterday’s parade of horribles was the traditional legislative update by David Chamberlain and Guy Choate. Turns out it was originally slotted between the presentations on murder for hire and torture, but Guy’s flight was delayed.  So we got that presentation this morning, followed by a moment of silence. Thanks to our sponsors for distributing Kleenex afterwards.

One of the benefits of the annual event by the Texas chapters of ABOTA is the regular attendance by national ABOTA leadership, which gives us a chance to meet  the leadership and talk with them about whatbis going on.  An example is current ABOTA President Cynthia McGuinn from California, who spoke next this morning about the issues ABOTA and its members face.  I had a chance to visit with Cynthia at the East Texas chapter dinner two nights ago, again at the reception last night and then again as we were leaving dinner.  Those are the kind of opportunities we have at this event that I really appreciate. (Okay, the last was limited to how great the food was, but still).

This morning she talked about what ABOTA is doing to protect our right to trial by jury, and about what we can do to help. We responded by giving her a Texas flag, because that’s what we think someone from California would really want.

Tex-ABOTA – 2018 Santa Fe Roundup – part 3 – Shoot Like A Girl and the Wolf of Wall Street

After starting the day with presentations involving child rape, murder of a spouse, torture and the death penalty, the presentations lightened up (relatively speaking) with securities fraud and a helicopter pilot in combat.

Working With The Wolf Of Wall Street – Hon. Karen Sage

Judge Sage’s current job is as a state district judge in Austin, but in her previous life she was on the prosecution team that prosecuted Jordan Belfort.

Shoot Like A Girl – MJ Hegar

MJ served three tours in Afghanistan as a search and rescue pilot, and told the story of when her helicopter was shot down and she and her crew fought off the Taliban until they could be rescued.  Her suit against the Department of Defense eventually resulted in the 2013 repeal of the policy that excluded women from combat.

Tex-ABOTA – 2018 Santa Fe Roundup – part 2 – the Texas Accomplice Witness Rule & Suing the Torturers

The Texas Accomplice Witness Rule – Richard Durbin

Richard is the former U.S. Attorney for the WDTX and showed how hiring someone to murder your spouse can get you in trouble, and the relevance of Greek mythology to the issue.

Suing the Torturers: Salim v. Mitchell and the 15-year Quest for Justice – Steve Watt

Steve is a staff attorney with the Human Rights Program of the ACLU specializing in civil and human rights litigation.  He discussed his case against the psychologists who who devised the program of torture that was used on detainees.

Tex-ABOTA – 2018 Santa Fe Roundup – part 1 – YFZ Ranch Prosecutions & Death Penalty Defense

As I have posted on previously, one of my favorite legal organizations is the American Board of Trial Advocates (ABOTA), which has as its goals:

  1. to preserve the 7th Amenment right of trial by jury;
  2. to promote the efficient administration of justice and constant improvement of the law; and
  3. to protect the independence of the judiciary.

The Texas chapters of ABOTA, collectively Tex-ABOTA, meet annually in Santa Fe, New Mexico each summer for a few days of fellowship and CLE, and to recognize each year’s award winners.  This year is a particularly special on for my East Texas chapter, as both the jurist of the year and one of the two Champions of Civil Justice were nominated by our chapter.  In addition, this year’s Tex-ABOTA president is our own Curt Fenley.  So we’ve gone out of our way to make it a special one – and have apparently succeeded, as Curt just announced that our attendance this year is the largest ever.

One of the characteristics of the annual meeting is the truly extraordinary nature of the CLE presented on Friday and Saturday mornings, and I wanted to post on it over the weekend.

Day 1 

Return to the YFZ Ranch – Eric Nichols

The events at the Yearning for Zion ranch occurred while I was on the State Bar Board of Directors.  At our meetings we received reports of hundreds of lawyers showing up at the West Texas courthouse to represent the minors as they were brought off the ranch.  It was one of the best examples I ever saw of lawyers mobilizing to make our legal system work, and of our State Bar facilitating that.

Eric spoke about his experience prosecuting the leaders of the cult.  He previously spoke on this topic at the T. John Ward Inn of Court in Kilgore, which overlaps to a large degree with East Texas – ABOTA, and it’s a powerful story.

Death is Different: Politics and “the Good Fight” – Dean Andrea Lyon

Dean Lyon (currently dean of Valparaiso University Law School) is a nationally recognized expert in the field of death penalty defense, and gave an overview of defending a death penalty case, and particularly the political nature of these cases.

You wouldn’t think a death penalty defense presentation would have any humor, but Dean Lyon’s did.

Motion to Transfer Granted – Current Standards on Foreign Defendants & More

It’s hard to believe that it’s been six weeks since I spoke on venue post-TC Heartland at the ABA IP meeting in Crystal City, but one thing I said is probably worth repeating – take your notes on venue in pencil.  Because there have already been three important Federal Circuit venue opinions since then. For the same reason, it’s always worth reading the most current venue opinions coming out of local courts because they implement the new decisions pretty quickly.  The attached is a good example, as it address several hot topics, including venue statutes not applying to foreign defendants and personal jurisdiction arising from products sold into the forum state, as well as the evergreen issues regarding transfer under Section 1404.  Oh, and it’s a Hatch-Waxman case too, so the analysis in places is sort of backwards and in high heels, as the Ginger Rogers reference would say.