Month: April 2018

2018 O’Connor’s Federal Rules * Civil Trials

msmithCommentary

Well look what showed up on my desk today.  The O’Connor’s series is 25 years old, and I’ve been working on the federal book for – can it really be 20 years?  I drafted a section in 1997 for the second edition of the book (it actually had no chapter on motions to transfer venue initially), and the next year had responsibility for two chapters, which then increased to five, to seven, and eventually to nine for many years with the late Greg Coleman handling discovery. I inherited that chapter as well after his untimely passing in 2010, and have been the sole updating editor ever since.

I still have their first book – the 1991 Texas civil trial book that we had to smuggle in and out of Practice Court at Baylor Law because Professor Muldrow banned it.  Most of the time being banned at Baylor meant something entirely different, but in this case he was outraged that the book made questions of civil procedure too easy.

It still does.  But you still have to read it first.

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Under the Sycamore Tree (there are pretrial motions)

msmithJudge William Bryson (CAFC), Marshall, Summary Judgment, Unpatentable - 35 USC 101

One of the most haunting moments of the season finale of the original Twin Peaks in 1992 was Jimmy Scott singing Under the Sycamore Trees as things got really, really weird. I think of this song whenever I read opinions in Sycamore IP Holdings v. AT&T, which gave us more to consider recently.  Actually, much, much more.

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Congratulations to Larry Phillips – Judge, 59th District Court, Grayson County

msmithCommentary

Congratulations are in order to my partner of the last ten-plus year Larry Phillips, who recently won the primary for judge of the 59th District Court in Grayson County.  He has no opponent in the fall, and it is my understanding Governor Greg Abbott will be appointing him to the vacant bench next week. Larry was elected to the Texas House of Representatives in 2003 replacing Judge Ron Clark following Judge Clark’s appointment to the Eastern District of Texas bench, and has served there ever since, chairing Transportation and several other committees that he didn’t enjoy nearly as much.  (Insurance?  Please.) Larry has also been active with the Eastern District of Texas Bar Association, serving as its president a few years back, and was the third of our firm’s four partners to serve in that role. He will still get bossed around by a Siebman in his new job, as Grayson County’s veteran County Court at Law Judge Carol Siebman is down the hall. Congratulations Larry – we know you’ll do great.  It’s been a privilege being your partner, and I wish you the best of luck in your new job.

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Supplemental (but not enhanced) damages awarded; case found “exceptional” under Section 285 due to litigation misconduct

msmithCommentary, Exceptional Case award - 35 USC 285, JMOL rulings, Judge Robert W. Schroeder III, Marshall

This is the first weblog post I have written standing at the podium in an EDTX courtroom, but the counsel table chairs are too low to use counsel table, and nobody else is in here, so why not? My cocounsel Brent Carpenter and I just finished a jury trial in Judge Trey Schroeder’s court in Texarkana, and while waiting on the jury (which is still out) I saw that Judge Schroeder put out a 54 page opinion resolving postverdict motions in the Elbit v. Hughes case, include exceptional case fees, yesterday so I wanted to post on that.

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Swearing In of New EDTX US Attorney; First Annual Northeast Texas Southeast Oklahoma Regional Rendezvous Honoring Law Enforcement

msmithCourt News

Joseph D. Brown was sworn in as the United States Attorney for the Eastern District of Texas on February 26, 2018, but had his formal administration of the oath at the Paul Brown (Joe’s uncle) courthouse in Sherman last Friday, April 13.    Mr. Brown serves as the chief federal law enforcement officer in the Eastern District of Texas, an area covering 43 counties with a population of more than 3.5 million.

Prior to his appointment as United States Attorney, Mr. Brown served for 17 years as the elected Criminal District Attorney of Grayson County, Texas.   From 2009 to 2014 he  served as a board member of the Texas Juvenile Justice Department where he helped to oversee the administration of Texas’ juvenile prison and probation system.

He graduated from the University of Texas at Austin with a bachelor’s degree in Government and received his juris doctorate degree from Southern Methodist University Dedman School of Law.

Following his formal swearing in, many attendees headed to my partner Clyde Siebman’s ranch in Oklahoma for the First Annual Northeast Texas Southeast Oklahoma Regional Rendezvous Honoring Law Enforcement, which was sponsored by the North Texas Crime Commission, Judge Paul Brown American Inn of Court, Eastern District of Texas Bar Association and Women Lawyers of the Eastern District of Texas. Invited guests include the U.S.Attorneys for the Eastern District of Texas and the Eastern District of Oklahoma, North Texas/Oklahoma Federal SACs; District Attorneys, County Sheriffs, OSBI and Texas Rangers of the Red River Valley, as well as other honored guests.

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The Impact of Heartland on District Court Litigation – ABA IP Section

msmithPapers/Seminar Presentations

I am looking forward to participating in a panel The Impact of Heartland on District Court Litigation at the ABA Section of Intellectual Property Law’s 33d Annual IP Law Conference this Thursday April 19, 2018 at the Crystal Gateway Marriott in Arlington Virginia. Our panel also includes: The Honorable Sherry R. Fallon United States Magistrate Judge U.S. District Court for the District of Delaware Jennifer T. Salinas Partner, Troutman Sanders LLP Irvine, California Frederick L. Cottrell, III (moderator) Director, Richards, Layton & Finger, P.A. Wilmington, Delaware According to the conference materials we will spend an hour and a half discussing “the impacts of the Supreme Court’s Heartland Decision on Patent Litigation and Venue Challenges Across the Country.”  They’re capitalizing all the nouns, so you know this is important stuff. The somewhat less breathless description of our topic states that  “[t]he Supreme Court’s Heartland decision has changed the patent litigation landscape across the country. The impacts are most evident in active patent litigation Districts in Texas, Delaware, and California. Implications for those jurisdictions, as well as, other venue issues arising from Heartland will be reviewed and discussed.” And discuss them we will.  I have really enjoyed working with my fellow panelists to prepare this presentation, and moderator Fred Cottrell has done exemplary work putting together one of the most informative slide decks on this topic that I have seen.  We discuss what’s happening in the caselaw and then in our respective districts, so I’ll be talking about what has and hasn’t changed about litigating patent infringement cases in the Eastern District of Texas since Heartland. Most of the time my job seems to be to point out that most of the significant issues we will be discussing are up on mandamus at the Federal Circuit, so it might be best to take notes in pencil on this one …

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Cybersecurity presentation at WDTX Bankruptcy Bench/Bar Conference

msmithPapers/Seminar Presentations

It’s a beautiful morning in Marble Falls deep in the Texas Hill Country as my copresenter Tony Sauerhoff from Fifth Circuit IT security and I prepare to speak at the annual WDTX Bankruptcy bench/bar on the topic of cybersecurity for law firms.

I can’t access the paper at the moment, but I’ll add it to this post when I get back the piney woods tonight. (Subscribers click through for the link).

Was able to shoehorn in a couple of other events on this trip, including dinner with the Baylor freshman in Waco Wednesday night, breakfast at Magnolia Table in Waco yesterday morning (thank you Chip and Joanna!) a CLE planning  meeting for this fall’s UT civil litigation seminar in Austin yesterday afternoon, and a quick trip to my favorite hobby shop in Austin for some new publications on 1942-era carriers. (There may have been a model or two as well).

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