Month: July 2017

I just received the attached announcement from the American Board of Trial Advocates (ABOTA).  A copy of the press release can be obtained here:

ABOTA responds to criticism of Judge Gilstrap

ABOTA defends Judge Rodney Gilstrap from attacks by House Chairman

Constitutional separation of powers requires judges to decide cases impartially without political pressure

DALLAS (July 19, 2017) — The American Board of Trial Advocates, a non-partisan national association of experienced trial lawyers and judges, opposes the direct personal attacks made by Rep. Darrell Issa, Chairman of the Intellectual Property Subcommittee of the House Judiciary Committee, about U.S. District Judge J. Rodney Gilstrap. ABOTA is dedicated to the preservation of a fair and impartial judiciary and the right to trial by jury. State and federal judges are accountable to the law, not to special interests or political pressure.

Recently, Rep. Issa criticized a recent ruling of Judge Gilstrap, District Judge for the United States Court of the Eastern District of Texas, calling his conduct “reprehensible” and insinuating the decision was motivated by a personal bias to local community interests rather than the law. Regrettably, Rep. Issa’s criticism extended beyond a challenge of the legal precedent to a personal attack on Judge Gilstrap and his integrity as a jurist.

“One of our primary purposes is the preservation of the independence of the judiciary,” said F. Dulin Kelly, ABOTA National President. “The judicial canons preclude judges from responding to public criticism of their rulings and when a member of the judiciary has been publicly criticized, our ABOTA protocol requires us to evaluate the criticism and determine whether a response on behalf of the judge or court is appropriate.”

ABOTA is an organization consisting of an equal balance of plaintiff and defense lawyers. The Texas statewide chapter, known as TEX-ABOTA, is made up of 16 local chapters and serves as a consolidated voice of more than 1,300 members. Ann Hennis, TEX-ABOTA President, said the statements about Judge Gilstrap are contrary to the organization’s ideals of disagreeing with respect, seeking a common ground, and allegiance to the Constitution of the United States.

Mr. Kelly added that with members of all political persuasions and both sides of the bar, ABOTA and TEX-ABOTA strongly decry this effort to politicize and denigrate any individual jurist.
In a formal statement posted on ABOTA.org, Mr. Kelly said:

“We reject the attempt to denounce our judges into foregoing their obligation to use their best judgment, devoid of influence, in an appropriate ruling. Whether you agree with isolated decisions or do not, political influence on our Courts is to be opposed.
When our elected representatives choose to issue personal attacks and name calling on any individual judge, demeaning the personal integrity of the jurist, the effect is to undermine the very principles of our liberty and government. Politics have no place in our courts. We believe judges should be selected in a manner that assures well-trained, qualified, experienced, independent and neutral judges. Political attacks that impugn a judge’s character have no legitimate role in the legislative framework. It weakens a critical, co-equal branch of our constitutional government. If we are to remain a nation of laws, we must have independent and neutral judges who will apply the law fairly and impartially. To utilize a personal attack against an individual jurist for the purpose of a political agenda diminishes the authority of our system of justice.”

Preserving the quality and independence of the judiciary has been a hallmark of ABOTA’s efforts for decades, and the organization believes that confidence in the nation’s judicial system is profoundly important. More on this topic can be found in the ABOTA white paper, “Preserving a Fair, Impartial and Independent Judiciary,” available at ABOTA.org.

About the American Board of Trial Advocates

Founded in 1958, ABOTA is a national association of experienced trial lawyers and judges. ABOTA and its members are dedicated to the preservation and promotion of the civil jury trial right provided by the Seventh Amendment to the U.S. Constitution. ABOTA membership consists of more than 7,600 lawyers — equally balanced between plaintiff and defense — and judges spread among 97 chapters in all 50 states and the District of Columbia.

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So far this year, EDTX has eleven patent verdicts.  There are five plaintiff and five defendant wins, with four of the five defense verdicts being complete wins, i.e. no claims infringed and all claims invalid. However one additional case had one claim infringed and valid and the other claim not infringed and invalid – and the second was the claim that had the significant damages, so I’m considering that as a wash, for an overall score of 5.5 wins each.  That the second most common verdict so far this year is a complete defense win on infringement and invalidity isn’t all that unusual – in 2013 it ended the year as the most common trial outcome. For comparison purposes, the composite percentage win rate for EDTX from 2008-2016 was 49.3% (the national win rate for the same period is 62.25%; Delaware was 55.14% and N.D. Cal. was 38.76% for the same period). Damage awards for the year thus far ranged from $4.1 million to $20 million, with the median around $8.3 million.  I don’t have a 2008-2016 stat on median damages awards, but the 1/14-6/16 EDTX median was $6.97 million, compared to national median of $8.09; Delaware was $15.5 million and and ND Cal. was $8.3 million. So a pretty normal year thus far as far as verdicts.