Two new form orders from Judge Albright. The first, discussed here, amends the Notice of Readiness procedure. Nothing to do with our wristbands other than that you might notice we were ready for our tours on the Hornet last week …
It’s been a while since I did a patent venue update. This one starts with 1849 and goes through the end of May, 2021.
While we were out seeing a giant statue of Paul Bunyan and his anatomically correct ox last week, Chief Judge Lynn was beginning the NDTX’ transition from the patent pilot courts program.
A Marshall jury found the claims both not infringed and invalid.
The court resolved the disputes over the case schedule and set the damages retrial for August 2, 2021.
Finished two weeks in trial in Sherman this week only to spend Saturday … judging trials in Baylor Law’s Top Gun National Mock Trial Competition.
Created in 2010, Top Gun is an invitation-only mock trial tournament where the single best advocates from the sixteen top trial advocacy schools across the nation (based on results from the other major national competitions) go head-to-head for the honor of being designated as “Top Gun.” The competition also boasts the use of advanced trial presentation software and a winner-take-all prize of $10,000.
Unlike other mock trial competitions, participants do not receive the case file until they arrive in Waco, 24 hours before the first round of trials begin. Preparation includes reviewing depositions, records, and photographs, and making a site visit to view the scene where the events occurred. Shortly before each round, competitors are assigned the witnesses (usually Baylor Law students, but two years ago my son Grayson, then a Baylor junior, was an expert witness on bicycles) who may be used at their discretion during the round. The jurors for each round are trial lawyers and judges, usually (but not always) Baylor grads.
There’s only one lawyer presenting per side, although they have another student serving as second chair to assist with interviewing witnesses and presenting evidence. As you can tell, things are a little different in 2021, with the trials being presented via Zoom. So a whole new world for trial advocacy presentation – but one we’ve all become used to over the last year.
I actually hate this – every round I spend nearly the first half of each trial wondering how I’m going to distinguish between what are uniformly outstanding oral advocates. We aren’t judging on the substance of the case or even of the admitted evidence. Instead, in the opposite of the way the process is supposed to work in real trials, where you pay attention to the merits and just enjoy the presentation (and bad is even better than good – everyone likes a good train wreck in the courtroom) we are looking expressly at style points – who presents their case better within the facts of the case and the rules of the competition. Stumbles count against you. Admitting you don’t know the answer counts against you.
Because the witnesses are usually law students busy with other things, the witnesses are often as forgetful and confused as real witnesses. But instead of faulting the advocates for poorly prepared witnesses (because they had no real role prepping the witnesses) a bad witness is actually a priceless opportunity to show real-world trial crisis management skills. Two years ago I was fortunate enough to judge a round involving the eventual champion Tatiana Terry where the expert witness she was assigned in my round was a complete smoking ruin. He didn’t know the facts, or what his own opinions were. Ms. Terry calmly refreshed his recollection (over and over, in the face of leading objections) and elicited what she needed from him without losing a beat. I, on the other hand, was a nervous wreck, since Grayson was in the next courtroom playing that same role, and I hoped he knew the underlying facts better and wasn’t putting his sponsoring lawyer through what I was seeing. As far as I was concerned, Ms. Terry was in a dead heat with the other advocate until her expert cratered. Her damage control skills during trial were what distinguished her.
The hardest part for me is that the scoring for direct, cross, and objections is at the end of the evidentiary portion of the trial, so I have to keep in mind each advocates’ prior performance on direct and on cross across multiple witnesses. The middle three scoring topics are not one after the other like opening and closing – you just have to note how each is doing on each witness and then remember to compare that to how the other does when they get to the same point in their presentation.
Fortunately, in the ones I have judged there eventually came a point where one advocate either encounters an area that is not their strength, or simply … glitters, and makes my job easier. “Glitters” is the best word I have for it. This morning was a good example – one advocate had the opposing party on the ropes in cross and he finally admitted that something was “probably” the case. “I don’t want probably” she fired back, and forced the witness to give the jury a clear admission – correctly reading that that was something she could get out of him. Again, the advocate took advantage of a faltering witness to show their skills.
Okay, I don’t hate all of it. Moments like that just make your heart jump when you see someone that just shines when they’re under the gun and knows what to do. Reminds me of a few points in our trial, come to think of it.
But it is disappointing that there aren’t any train wrecks.