Changes to EDTX Jury Wheel

Currently, EDTX jury wheels draw from lists of registered voters. Other courts, such as, for example the adjacent Northern District of Texas, draw from voter lists and drivers license lists, and eliminate duplicates. The EDTX proposes to change to a similar system including drivers licenses. If the Fifth Circuit Judicial Council approves, the change will take effect on January 1, 2020. (I know they don’t actually use rotating drums with slips of paper any more, but I’m fond of the old terminology).

How I Work: Picking Cases to Post On

Okay, this is me working on something other than the blog, but you get the idea. I wanted to go over the process of picking cases for the blog and provide a little insight into which cases get picked and why.

Step 1: Gathering Cases

I’ll try not to constantly reference organizing tools like Getting Things Done, but the process is similar. I start out with multiple sources, ranging from public databases like West or Lexis, as well as smaller proprietary databases that deal with patent and other litigation I’m interested in – including False Claims Act and employment cases. This morning those generated a little over thirty cases. I then add to that any cases I see in news stories, although those rarely cover a case I haven’t already heard about. Added to those are cases sent from readers and attorney friends who think I might be interested in one, as well as cases from multiple blogs and news sources I follow.

Most of the cases are patent infringement both because that’s what most readers are interested in and because patent infringement cases tend to generate a lot of lengthy, substantive opinions. Nonpatent cases might cover similar procedural issues, but not in as much detail or as often – and the sources for those orders are thinner. Often the only source for those will be what’s reported in West or Lexis.

Obviously I don’t post on thirty-plus cases a day, so what’s the next step?

Step 2: What’s Not Useful?

The next step is to cull the cases for a couple of things. First, summary affirmances of reports and recommendations usually go out. They often come up at the same time as the underlying report and recommendation so I usually look at the report to see if there’s a novel issue. Sometimes it matters that, for example, Judge Payne concluded X and that Judge Gilstrap affirmed his recommendation on that point, but if X is a routine issue, it probably isn’t worth addressing. On the other hand, if we’ve been wondering how the court would address X, it would matter not only which way the court went, but that that recommendation was accepted.

Next, are pro se cases. The Sherman Division, in particular, grows a bountiful crop of pro se litigation, but unlike the prisoner inmate litigation I grew up with, it tends to be in the banking and foreclosure context and present issues that are well-established. Which might explain why the losing party is so often unrepresented.

I mentioned inmate cases, and these go out as well. There might be a novel issue here – I was the law clerk on the crunchy peanut butter case that Judge Hall resolved back in the early ’90s – but usually not. (I might actually be making that up – it’s been so long I honestly don’t recall if I am or not. We had some that were pretty close to that, so it at least approximates the truth).

Once I’ve pared the cases down to this point training camp is over and it’s time for final cuts.

Step 3: Does It Spark Joy?

Marie Kondo has come between my wife and me. I can sit and watch her organize like other men watch sports. Jamie, on the other hand, did just over five minutes one time and announced she had a migraine. She refuses to watch it now.

But her approach fits picking cases. Once I have the cases down to the ones that I think there would be interest in, I add them to my research database and index them accordingly, but put copies on my desktop and pop them open to read them substantively. And damned if “does it bring joy?” isn’t a great way to do describe what I do next. What am I looking for?

Opinions on hot litigation topics

If there is a verdict or an EDTX judge rules on a requested for enhanced damages or exceptional case status, for example, that’s a hot issue that readers want to know about. The opinion itself may not say anything novel, but the fact of the ruling is something I want to always catch.

Application of common standards

Things like Daubert and summary judgment rulings fall into a second category, because while they’re routine motions (Judge Albright would want me to observe that they should not be routine and don’t file them as to every expert and claim, but that’s a different issue) if you’re practicing in that judge’s court you want to watch the process every time your judge rules on such a motion. Have the boilerplate citations changed, was there a fact that changed the analysis, or was there an argument that didn’t fare well?

Practice is not quite as simple as it was twenty or twenty-five years ago when we read every word of every one of Judge Hall or Judge Ward or Judge Heartfield’s venue orders to see how he was viewing certain facts, and what he thought of the most recent appellate decisions, but you still want to see how common arguments fare, and if the Court’s analysis is changing.

I’d include JMOL rulings here as well not just because they’re the application of common standards but because they’re a fairly thorough analysis of the issues commonly raised in a case.

Statements of Rules

Judges sometimes don’t just rule on disputes – they set out what they see to be the boundaries of acceptable behavior in their court. It might be in the form of enunciating a standard for discovery conduct, or a warning as to conduct that won’t be tolerated. I try to catch and publish these because while the court may or may not want to send a signal to practitioners in a particular case, practitioners want to know what the court expects.
A good example here was Judge Gilstrap’s recent observation about “permission versus forgiveness”. It’s a statement of the Court’s attitude about a specific action or strategy or tactic.

So if there’s a significant standing order, I’ll usually post on that. If a court calls someone out, I’ll usually post on that.

Judges’ Pet Peeves

This isn’t quite the same thing as the “pet peeves” you hear about on judges panels. In this context I am really referring to things that make judges mad, usually conduct by lawyers or parties. A judge might simply rule against a party – that’s not what I’m talking about. It’s when they stop and take time to explain why certain conduct was objectionable – what is sometimes referred to as a “bench slap”. I’m not cheering sarcasm or discourtesy from the bench, but if I see it, it’s an indication that there’s conduct that I want to stay away from in practice, which means it’s eminently post-worthy.

Golden quotes

This morning was a great example. Buried several pages into one of Judge Mazzant’s opinions was an unexpected comment about how well done the defendant’s motion was – I couldn’t pass that one up. Or there might be a passing observation about some historical figure or concept, or a particularly witty bon mot that summarizes a situation or a judge’s reaction to a specific fact or argument.

The primus inter pares for all such quotes sits in the 82nd of the 83 footnotes to Texas Instruments, Inc. v. Hyundai Electronics Industries Co., Ltd.,
42 F.Supp.2d 660, 692 (E.D. Tex. 1999) in which Judge Thad Heartfield writes the following near the end of an opinion resolving a license defense.

At the “Evidentiary Hearing” held before this Court on February 4, 1999, counsel for Texas Instruments, Mr. Kenneth Adamo, succinctly described the trouble with Hyundai’s various arguments it levies to support its “TI Country Concept” interpretation of the License Agreement: “… Hyundai’s license defense, to try to figure out what the defense has been, when, and what the parameters are, if I can use an expression from my childhood, has been like trying to nail Jell–O to a wall.” Transcript of Evidentiary Hearing at 89. This Court has felt similar frustration throughout Hyundai’s briefing and motions. Well Mr. Adamo, consider the Jell–O nailed.

42 F.Supp. at 692, n. 82.

What you wouldn’t know if you weren’t there is that this lengthy opinion resolving the issues at the hearing was handed out to the lawyers shortly after the hearing was concluded – the hearing at which the Jell-O comment was made. For this reason, Judge Heartfield’s opinions in the case ended up referred to as the “Jell-O Trilogy“, even though there were eventually five of them. (Opinions differ as to whether others had even better quotes).

Not all opinions have such golden quotes – but they’re worth looking for.

Anyway, that’s what I spend part of most of my mornings looking for – cases to post on that will bring me, if no one else, joy.

Investiture – WDTX Judge Alan Albright

Had a great time yesterday at the investiture ceremony for the Western District of Texas’ newest judge, Alan Albright. The ceremony was held in the Baylor Club at McLane Stadium in Waco, and a good time was had by all, but most of all by Judge Albright (although Cam Barker placed a very strong second). Judge Albright was sworn in by his friend and mentor Judge James Nowlin of Austin, who he clerked for.

Congratulations Judge Albright!