Marshall “Seventh Amendment Symposium” event – East Texas ABOTA

Tomorrow, on behalf of the East Texas chapter of the American Board of Trial Advocates (ABOTA) we will be conducting one of our Seventh Amendment Symposiums in Marshall for about 45 local high school students.  ET-ABOTA does these events for several local high schools each spring in furtherance of our mission to preserve and promote the Seventh Amendment’s right to civil jury trial.  This four-minute video provides a great overview of what the seminar is all about, including commentary by Judge Love and Judge Mitchell, who regularly participate in the Tyler sessions.

Other Tex-ABOTA members conducted a SAC in Tyler earlier this week, and tomorrow it will be our turn in Marshall. Since there are jury trials going in both state courtrooms as well as Judge Gilstrap’s court across the street, there’s isn’t a large enough live courtroom available, so we will be using the historic Harrison County courtroom in the old courthouse.

The schedule is a tested one – in the morning we go to the county courthouse to give the students a presentation on the history and purpose of the Seventh Amendment, then a state court judge (here former Harrison County Court at Law Judge Jim Ammerman) talks to students about the role of the state court system.  Then after lunch we head to the local federal courthouse for a presentation on the differences in state and federal courts, followed by a presentation by the local federal judge on the role of the federal courts and the importance of jury service.

As I said, since both courthouses are booked with trials tomorrow, we are handling everything in the historic courtroom in the old courthouse, and U.S. District Judge Rodney Gilstrap has graciously agreed to come talk with the students during the lunch break of his trial about federal court and the importance of jury service.

Readers interested in conducting something similar in your communities, drop me a line and I’ll send you some information on how all this works.

Clickwrap: Motion for Summary Judgment re: Independent Distributorship Agreement

Motions for summary judgment are often used to isolate and dispose of claims that are factually unsupported.  A classic example is where, as here, a contract between the parties is alleged to preclude or limit certain claims or elements of damages.  Such a case was presented in this recent opinion by Judge Mazzant in Sherman in which

EDTX Throwback: Claim That Beefmaster Bull Was a Closet Black Angus Dismissed With Prejudice

Bryan v. Jones, 2:05cv109, 2005 WL 1189882 (May 19, 2005)
Division: Marshall
Judge: Leonard Davis
Holding: Defendants’ Motion to Dismiss GRANTED

The next time someone says that the practice of law is dull, send them this case.

This was a case brought by a Beefmaster breeder against the owner of a champion Beefmaster bull named “Soul Man” claiming that “Soul Man” was really a black angus, and not a Beefmaster at all.  More specifically, the dispute was over the fact that “Soul Man” was black instead of brinnel, the color the plaintiff claimed “real” Beefmaster bulls were.

This being East Texas, the plaintiff in this fight over what color a cow should be was represented by her son in law.  Since “Soul Man’s” semen was a hot commodity, so to speak, due to his champion status, the plaintiff claimed that dissemination of his semen as being that of a Beefmaster bull, when it was really not, harmed the breed, and hence her business.  (Which is, essentially the issue UT graduates have with Texas Aggies, but let’s not go there right now).  The defendant (who I am proud to say I got to represent) filed a motion to dismiss under Rule 12(b)(6) claiming that the complaint failed to state a claim on which relief could be granted.

Since the brief was written a little tongue in cheek in honor of the unique facts of the case, including more analysis of the closely analogous “cheerleader cases” than they ever deserved, I have gotten a few requests for it – a copy is attached here Download 00300_def_mtn_dismiss.pdf .  (I mean no disrespect to that line of cases, incidentally – again, in Texas the issue of whether there is a protected Constitutional interest in a fair and impartial cheerleading tryout is at least as significant as arguing over whether a bull can be discriminated against because he happened to be black).

Judge Davis granted the motion, holding that none of the plaintiff’s claims were cognizable under any recognized theory of tort or contract law, and declined to find that they stated  a violation of a protected property interest.

At last report, “Soul Man” has returned to his enviable livelihood wandering the meadows of his native Tennessee, his champion status undisturbed by the U.S. District Court for the Eastern District of Texas.  Would that patent cases were all this much fun.

1451 – Bryan v Jones order

Texas Jury Appreciation Week

In Texas, the first days of May are celebrated as Jury Appreciation Week, a time to honor the service of those who give of their time to participate in the American judicial system.

Created by the 84th Texas Legislature, the inaugural week kicked off last year.

For this year’s festivities, the State Bar of Texas Jury Service Committee developed a guide to assist people who interact with prospective jurors and those who serve on juries in learning more about Jury Appreciation Week. The goal is to stimulate conversations and ideas about how to improve the public’s perception of jury service.

Explore the guide on the committee’s website, check back on the blog all week for content celebrating juries, and show your appreciation by posting on social media about why jury service is important using the hashtag #ThankAJuror.

Uropep v. Lilly verdict

I am a few days late getting Friday’s verdict in Uropep v. Lilly by a Marshall jury in visiting Federal Circuit Judge Bryson’s court up, but I have a good excuse – we were chaperoning our 8th grade twins’ class trip to DC where they had their picture taken outside the Federal Circuit’s building (hey, it’s technically true).

The jury found induced infringement, that none of the invalidity claims were proved by clear and convincing evidence, and set damages at $20 million.  (More gratuitous shots of my kids to illustrate only remotely related legal concepts to follow).

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.

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.

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.