Advanced IP Litigation 2020 – “Photography Copyright Litigation”

I’m speaking (virtually) at 2:15 this afternoon at the State Bar’s AIP course – and will be online to chat with attendees.

When I signed up to present last fall on the newly fascinating subject of copyright litigation as it pertains to copyrights of photographs, we were expecting two days at the Four Seasons in Dallas. Fate intervened, and we switched to pre-recorded sessions from our respective homes and offices.

So what attendees will see today is a split screen with the speaker and the slides. But there’s a bonus to the remote presentations – the Bar has invited speakers to be available to chat with attendees during their presentations, so when virtual me starts talking this afternoon – accompanied by my portfolio when I was studying photography in college – I’ll be popping up in a chat box on their screens in case they want to comment or ask questions.

I’ve watched some of the sessions and the substantive quality of the presentations – which we expect from TexasBarCLE – is matched by the technical quality. So if you’re interested, sign up and watch live or watch later at your leisure. The Denver PTO Office director is up next, followed by EDTX Judge Love and PTAB Judge Quinn on claim construction in parallel proceedings, followed by me at 2:15.

I’ve never watched myself present before. It’s going to be weird.

100 Years of Practice Court

Well, this certainly explains 2020.

Baylor Law School is celebrating (if you can call it that) the centennial of its infamous Practice Court program with a commemorative t-shirt with the official slogan “Killing Fun For 100 Years!”

As always, when it comes to Practice Court, words fail me. Actually they’re not failing me, they’re getting caught in my browser’s filter for explicit language. But I had to get the shirt to add to my PC collection.

My class’ PC shirt summer of 1991 had the front page of the Waco newspaper showing our PC professor’s house burning (it actually did) and a drawing of us making a bucket brigade around to the back – to the pumps at the nearby Texaco station. Now you may say that it’s in poor taste to celebrate your prof’s house burning down. But the poor taste went oh, so much deeper. During our incarceration Prof. Muldrow had helped Texaco in a trial, and they had gotten absolutely pounded by a Waco jury. So it was a two-fer.

After a spectacularly unsuccessful round of counseling for Stockholm Syndrome the surviving members of our class asked Professor Muldrow to be our commencement speaker a few months later, and I’ve kept his remarks on the practice of law in a notebook in my office ever since. Every so often I have to replace the cover because of the dart holes, but the speech is still there.

Uphill both ways, in the snow …

Lawyer’s Prayer – St. Thomas More

I was attending the monthly meeting of the Houston chapter of the St. Thomas More Society today, and we started off with a prayer I’d never heard before – to Thomas More, patron saint of lawyers:

Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints:

Pray that, for the glory of God and in the pursuit of His justice,
I may be trustworthy with confidences,
keen in study, accurate in analysis,
correct in conclusion, able in argument,
loyal to clients, honest with all,
courteous to adversaries, ever attentive to conscience.
Sit with me at my desk and listen with me to my clients’ tales.
Read with me in my library and stand always beside me
so that today I shall not, to win a point, lose my soul.

Pray that my family may find in me what yours found in you:
friendship and courage, cheerfulness and charity,
diligence in duties, counsel in adversity,
patience in pain—their good servant, and God’s first.

Amen

More was executed by his client, Henry VIII in 1535.

“Litigation Writing” – The Advocate

A particularly stellar issue of The Advocate this quarter, focusing on litigation writing with a side of Butterick.

The State Bar Litigation Section’s Advocate quarterly publication has been cranking out some of the best and most practical legal writing around since its Pat Hazel days. It remains aggressively paper-based, and it’s a banner day around the office when one comes in.

This quarter’s issue is on litigation writing, and as the contents show, it’s a list of must-read articles, including tips on writing mistakes and writing respectfully. But my favorite is Fifth Circuit Judge Don Willett’s A Court of Equity: There’s A New Serif in Town, which is a carpet-bombing of puns about typography celebrating the Fifth Circuit’s adoption of Matthew Butterick’s “Equity” font for its opinions.

Butterick’s Typography for Lawyers (what, you don’t have one on your shelf?) is Bryan Garner at the individual letter level, and Willett’s article explains its relative merits, as well as the other changes made by the Fifth Circuit. It’s pretty persuasive, but the result as shown above is really something. It is actually easier to read.

Public Comments Sought on Proposed Texas Disciplinary Rules

The Texas Committee on Disciplinary Rules and Referenda has published three proposed rules for comment:

The Committee is responsible for overseeing the initial process for proposing a change or addition to the disciplinary rules (Gov’t Code § 81.0873). It will accept comments concerning the proposed rules through October 6, 2020. Comments can be submitted here, or by email to cdrr@texasbar.com. For additional information, including to view proposed interpretive comments, please go to the Committee’s Docketed Requests page.

A public hearing on each of the proposed rules will be held by teleconference at 10:30 a.m. CDT on September 17, 2020. For teleconference participation information, please go to texasbar.com/cdrr/participate. If you plan to participate in a scheduled public hearing, it is requested that you email cdrr@texasbar.com in advance of the hearing with your name and the public hearing item you wish to speak on so the Committee can group speakers by topic during the hearings.

Father of the Modern Eastern District – Judge Robert M. Parker – 1937 – 2020

Judge Robert M. Parker

Former EDTX Chief Judge Robert M. Parker passed away late last week.

Judge Parker graduated from Hallsville High School in 1956, then from the University of Texas at Austin with a BBA in 1961, and from the University of Texas School of Law in 1964. He spent one year in Washington, DC as the Administrative Assistant to U.S. Congressman Ray Roberts before returning to East Texas to begin a distinguished career as a trial lawyer and judge. While in private practice in Longview, he tried hundreds of cases before juries, developing a deep understanding of the justice system and a profound respect for the role of trial by jury.

In 1979, he was appointed by President Jimmy Carter to serve as a United States District Judge for the Eastern District of Texas. He sat in Beaumont, Marshall, and Tyler, and later served as Chief Judge of the Eastern District.

He handled more asbestos cases than any judge in the country and was innovative and imaginative, developing new techniques for efficient case handling and trials. During those years, he also engineered the Eastern District Expense and Delay Reduction Plan (more about that later) to streamline cumbersome discovery and rising litigation costs, which became a model for such plans across the country.

In 1994 he was appointed by President Bill Clinton as Circuit Judge on the Fifth Circuit Court of Appeals in New Orleans, where he served until his retirement from the bench in 2002.   His retirement lasted one week, after which he reentered private practice, where he began specializing in mediation and arbitration, then later returned to the courtroom.

 Judge Parker married the former Frieda White in 1958 and would have celebrated their 62nd anniversary this past Saturday, August 29. He is survived by Mrs. Parker, his two daughters, Jennifer Parker Ainsworth and Celia Parker Bunt, his four grandchildren, Charles Ross Ainsworth, Henry Price Ainsworth, Elizabeth Parker Bunt, and Andrew Robert Bunt, and his two sons-in-law, Charles Ainsworth and Chris Bunt.

He loved gardening and spent his last days harvesting and pickling vegetables from his garden. “He was a man of ideas and projects, ” his obituary notes, “constantly building and planning. He devoted countless hours to wooden boats, philosophy, and chicken husbandry.” He believed strongly that this country’s democracy depended on the fair administration of justice through the court system, and devoted a substantial part of his life to work towards that goal. (Not the chicken husbandry part, obviously).

“The Plan”

Judge Hall signed the copy of the Plan I used during my clerkship.

Judge Parker’s accomplishments and honors are legion, but it is for his work authoring the Plan that he should be rightly remembered as the father of the modern Eastern District of Texas. Likely not a day goes by that anyone that practices locally does not use or explain (or contemplate if they can get around) something he wrote almost 30 years ago.

In 1990, Congress, concerned regarding the increasing cost of civil litigation, enacted the Civil Justice Reform Act of 1991, 28 U.S.C. 471, et seq. (CJRA) which required each U.S. district court to implement a CJRA plan to improve litigation management. Even though the Eastern District was not one of the districts initially required to produce a plan under the CJRA, then-Chief Judge Parker appointed an advisory group in accordance with the statute. Then, after reviewing that group’s recommendations, he promulgated on behalf of the judges of the Eastern District the district’s Civil Justice Expense and Delay Reduction Plan, adopted Dec. 20, 1991.  The Plan reflected Judge Parker’s experience both in private practice and as an innovator on the bench.

The Plan was what drew Texas Instruments to Marshall for its patent infringement cases in 1992, and it dominated local practice for the next nine years as part of the local rules until 2000, when much of it moved into judges’ case-specific orders, where it exists, often in unchanged language, to this day. Its major provisions such as broad mandatory initial disclosures continue to guide practice across much of the district, and in particular the district’s heavy patent docket.  For a fuller version of the story, see my post here, or the article Man With The Plan: Successful Eastern District Practice Requires Understanding History in the April 11, 2011 Texas Lawyer.

I was fortunate to have grown up as a lawyer in a district headed by a veteran trial lawyer like Judge Parker. And to not have had any better sense than to go say hello when he set up his appellate chambers in Tyler, where we had a nice visit. I will always remember how hard he laughed when I told him my wife’s saying from Baylor that “life’s too short to dance with ugly men” at a party in his honor when he retired for that one week. I thought it was funny, but I didn’t think it was that funny. For some reason, he did.

I never appeared before him, but had my one opportunity to work against him (such as it was) in a courtroom when he returned to practice. It was just a scheduling conference in Judge Ward’s court with no issues (well, the court reporter was crying, but other than that), but like any decent East Texas lawyer I am working on it and within another year or two will have it embroidered into a hotly contested week-long jury trial, (possibly involving chicken farming).

Judge Parker didn’t need to embroider courtroom stories, and we are all the poorer that he’s not going to be here to tell us any more of them. Rest in peace, Judge, and thank you for all you did for us.

IP Aggies Webinar Series

Spending lunch today watching the first of the the IP Aggies Webinar Series.

The Texas A&M University School of Law ‘Intellectual Property Aggies’ Student Organization has a webinar series starting today, and continuing every other Wednesday at 12:05. The first topic is A Practice in Copyright and Trademark Law: Current and Future Trends and Issues by Cheryl P. Leb, chair of the IP Section at Kelly, Hart & Hallman.

The presentation is geared toward law students and is giving them practical information on the practice area and what practice is like, as well as priceless advice on practicing law in general (“be nice” is always worth hearing). There’s even information of historical interest from back when we had law offices, sent everything by overnight mail, and had face to face meetings with clients.

It’s a terrific chance to hear a practitioner in a field you might be interested in, whether you’re a law student, clerking, or practicing. And today’s presenter is quite candid about how things work and how they’ve changed. Again, it’s just really practical advice, especially for newer lawyers.

There are other topics coming up over the next two months that might be of interest. Kudos to IP Aggies for putting this together and making it available.