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.
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.
This week saw a new firm name out front as I joined Scheef & Stone, LLP, which has offices in Dallas, Frisco, and now Marshall. Very happy to join the firm, and am looking forward to working with my new firm family.
Back in Sherman for a two week trial, and the courtroom audio is spectacular.
I recorded my presentation on this topic for the May 28 seminar on Federal Court Practice earlier this week.
It draws from a paper I co-wrote with Magistrate Judge Roy S. Payne several years ago. A number of years ago I started doing a presentation on motion practice in federal court, which I first presented with Judge Amos Mazzant at this seminar, and eventually decided that trial procedure was really the more fun topic since we were trying a lot of cases, so I traded up for the trial topic.
Both papers were originally envisioned as tools for a panel presentation with the co-presenting judge where their role was to heckle me when I presented the conventional wisdom on the topics, which I think is a good way to show attendees different perspectives on the topic from lawyers and judges. But Judge Mazzant was too nice to heckle me effectively, and Judge Payne was too effective at it (you wouldn’t think, but he really is), so I decided to pick up my slides and start doing the presentation by myself where I cannot be contradicted. I get enough of that in my day job as it is.
This year’s presentation is updated to reflect – in an anonymous sort of way – some of my experiences last month in trial in front of Judge Mazzant and Judge Gilstrap, as well as some of NDTX Chief Judge Barbara Lynn’s thoughts on lawyers being slobs in remote proceedings.
Information regarding the seminar – which streams starting May 28 – is above, and the actual paper and slides are below the fold.
The National Board of Trial Advocacy (NBTA) is offering a new certification in patent litigation.
Chief Judge Rodney Gilstrap, who heads the National Board of Patent Litigation Lawyers, a newly created division of the NBTA, says it will provide a “new level of recognition” for patent litigators. “This provides a tangible means of identifying and properly recognizing those lawyers of both proven knowledge and established skill in the development and trial of patent cases,” he said. “There has been a need for this certification for some time. I believe this new level of recognition will serve both the bar and the bench very effectively.”
To be certified, attorneys must meet the requirements of relevant patent experience, pass an examination and satisfy high ethical standards, continuing legal education requirements and peer review. The initial requirements allow applicants to gain credit for different activity related to patent litigation, but in most categories only up to a certain point, and as I count the points, applicants must have been lead counsel in at least three patent jury trials. Bill Lee and Morgan Chu refer to this requirement as “last month.”
The certification lasts for five years, after which the lawyer must seek recertification. The certification can also be revoked at any time for violations of the NBTA’s general principles and standards.
I’ve spent the last three weeks in trial in two EDTX courts during COVID, and wanted to pass along some observations. The most important is that fried Oreos exist, but there are a few others as well.
No, no, no.
Hobbit meals for jurors.
One of Texas’ legal legends, Lloyd Lochridge, passed away last week.
One of the high points of my State Bar president-elect race five years ago was going into Mr. Lochridge’s office and asking for his vote, because 30 years earlier I had been a runner at his law firm in Austin.
I had just graduated from college in 1986, and was moving to Austin to start graduate school, but needed a job to, you know, eat. I was working in Franklin Jones’ office in Marshall that summer, and he made a call to his fellow former State Bar president Mr. Lochridge and he found a space in the mail room for me. There was this newfangled “facsimile” machine up on the 11th floor, but it was one of the few in town, so we had a crew of college-age runners like me that took papers all over Austin.
I should note that no one should have been happier at my arrival that fall than the firm’s newest associate, Alan Albright, because when I arrived, I was the only person that he was senior to.
So it was a great pleasure and privilege to walk into Mr. Lochridge’s office and ask for his vote for the same office he had held forty years earlier.
Most of you reading this post didn’t know Mr. Lochridge, but he was one of the giants of the postwar Texas bar. Born in 1918, he was an Eagle Scout at Franklin D. Roosevelt’s inaugural, served in the Navy during World War II, and for decades afterwards was a lion of the bar, serving his profession and his community in ways to numerous to mention. He continued coming into his office in coat and tie daily until last year, at the age of 102.