East Texas – ABOTA Chapter Wins Chapter of the Year

I am ridiculously proud to recognize my East Texas chapter of the American Board of Trial Advocates for winning the large chapter of the year award last month at the National Board Meeting in Whistler, BC, Canada. (Why does ABOTA meet in Canada? Probably for the same reason Tex-ABOTA meets in Santa Fe – it’s too damn hot here). The small chapter award was taken home by the San Bernadino/Riverside chapter.

The chapter was represented at the meeting by ABOTA president Jennifer Doan of Texarkana, Curt Fenley of Nacogdoches and Jack Baldwin of Marshall. Oh, and Marshall Wood, also of Texarkana, who then forgot to bring the trophy to our fall social in Tyler last week.

The award is the outcome of several years of hard work by chapter presidents and members, and we are so, so thankful for all their work towards gaining this recognition for the good work our chapter does.

I continue to plug away at ABOTA committee work, all of which I am really enjoying. Jennifer just appointed me to a workgroup at the national level looking into the effect of AI on trial practice, and at the state level I chair Tex-ABOTA’s amicus brief committee, and have been fortunate to continue to be involved in the discussion of how Texas’ business courts are going to work when they begin operation next September.

Congratulations again!

Baylor Litigation Management LL.M. – Final Semester


Just started the last semester of what’s been a very enjoyable and informative LL.M. at Baylor on litigation management. This semester I’ll be doing a deep dive into current trends in e-discovery using the Scheindlin & Capra text, as well as ethical issues in litigation management, expert witnesses, management of complex litigation, complex arbitration & negotiation, and small firm litigation management. And I’ll be wrapping up my research paper – actually two since we do both a short and a long version of our topic. Of course some of these topics are old friends – but one thing I’ve learned in this program is that there’s so much more to learn, even on subjects I’ve been dealing with for over 30 years now, some on a daily basis.

Motion To Dismiss For Improper Venue Denied

Judge Payne denied the motion, which was predicated not on the defendant’s not having a regular and established place of business in the district – it admitted that it did – but its argument that “that property is not used for the accused systems.”  Even assuming that the argument was correct, the court found sufficient evidence of allegedly infringing activity, and denied the alternative motion to transfer the case to the SDTX.

Patent Case Management Year in Review – BCLT 2023 IP + Tech Month

I had a lot of fun taping this Friday afternoon with Azra, Kiley & Wayne for the Berkeley Center for Law & Technology’s “IP + Tech Month” program. I don’t usually say that about anything involving 73 slides, but here I will. My Texas portion started out as a 63 page script of cases over the past year, condensed down to 15 slides, but the condensing process – as it is wont to do – hopefully made it better and more useful.

The presentation started out with a brief overview of the Supreme Court’s new case on enablement which came out the day before, then covered patent case management developments in Delaware before I went through what’s happened in Texas courts over the last year.

Another Texas IP Roundup

I enjoyed talking about the latest news about Texas IP cases in federal court today with Wayne Stacy on B-CLE. In today’s episode – which you can watch here free and get CLE credit – we talked:

WDTX Case Assignments – With the changes in case assignments and the retirement of Judge Yeakel, things are changing in the Western District of Texas. 

Venue Rules – Judge Albright’s Atlas case gives us an interesting analysis of the inevitable collisions between Fifth Circuit cases and Federal Circuit cases.  It seems clear that court congestion is no longer considered relevant when the plaintiff is a non-practicing entity.

Remedies – two remedies cases–USAA and US Silica–provide great reading and a roadmap for challenging damages and seeking a permanent injunction.

– Finally, the court gives us a great explanation of Rule 50(a) and the de minimis exception.  For those looking to preserve their appeals, this is a must read.

Attorney Has Second Case Dismissed for Lack of Standing this Year

Judge Kathleen Cardone granted the defendants’ motions to dismiss the plaintiff’s patent claims for lack of standing, finding defects in the chain of title for the patents in suit. Although noting that it was a “close call” and that this was the attorney’s second case dismissed on this ground this year, she did not award sanctions under FRCP 11, although she did admonish the plaintiff’s attorney for his conduct.

Mobile Setup for Working/Studying

I’ve been trading emails with people recently about my setup for working my LL.M. classes while staying busy with the day job from different locations, and thought I’d provide a brief of summary of what I’ve found helpful as far as devices and systems – some of which might apply to mobile work more generally. (No promises whether it’ll be helpful, and the part about being brief is unlikely at best).

Canvas My Life

As your kids can tell you, a lot of schoolwork at the college level is presented to students through platforms like Canvas, where reading and writing assignments are distributed and collected. For online programs like my master’s programs in World War II Studies and now Litigation Management at Baylor, each “module” also contains video lectures.

In the World War II program, because the courses were larger and presented sequentially, each module generally took a week. I would start on Monday reading the assignments and watching the lectures, and later in the week start drafting papers or participating in discussions online. In the litigation management program, there are five or six courses presented simultaneously, with many being one or two hour credit programs. Accordingly, you can often work a module a day, or work two or even three modules across different sections to fit your schedule.


As I’ll discuss below, the devices I make use of the most are – as shown above – my iPad, my reMarkable (with EMR stylus), and to a lesser extent a rubber-tipped stylus for highlighting and my headphones.

The reMarkable bears a quick note. Yes, you can take notes on your iPad, but the screen real estate is too small to take notes and refer to content, so several years ago I began using the reMarkable for all my notetaking, and carry it wherever I take my iPad. There is a limited exception in the courtroom for anything I am doing personally – voir diring a jury, examining a witness, etc. – where I am likely to need to refer to multiple pages either at the same time or in very quick succession. Otherwise I am essentially paperless.

Reading, Watching, Writing

It doesn’t have the glamour of “Eat, Pray, Love” but to each their own. I generally start with the assigned readings. I’ve learned that I can read more easily on the iPad because it is easier to highlight readings using a stylus than with a mouse on a large screen. I can do this almost anywhere.

I then move to the lectures. I have tried watching them on my computer monitor or casting them to a television, but oddly, I have discovered that playing them on an iPad – the worst option in terms of size and audio – works best. I also usually watch them at 1.5 speed, except for Professor Powell, because even after 32 years I’m a little afraid of him, and worried he might find out.

As far as devices, all I normally need is an iPad, my reMarkable and an EMR pen (I use the Lamy shown above, and keeps smaller spares in my bags just in case). When traveling, such as in an airport, I’ll use headphones. All this allows me to keep moving forward wherever I am. As Professor Liz Fraley says about having to work through 65-70 modules each trimester, it’s like eating an elephant – you do it one bite at a time. Working one reading of four or one lecture of three is still progress.

When I’m at a familiar work station, I usually have a slant-top desk of some kind. At home a Levenger desk holds the iPad with the lecture while I take notes. At the office I often use one of the slant-top writing/reading stands I made from old Hub shoe shelving. Actually that might take a little explaining.

Slant-Top Writing Surfaces

I made several of these little stands in my workshop out of shelving from the Hub when it was a shoe store (1897-2001). They can be flipped to serve either as a slant-top reading/writing surface or a copy stand.

I’m ready to make a new set since while the basic design is good, the dimensions need to be changed, and I want to handle the construction and finishing a little differently. But I digress.


I require a little different setting for writing assignments than I do reading or watching videos, so if I am away from my computer, I’ll finish the readings and lectures, and then start moving forward on a module in a different course. Once I’m back at my computer, I knock the assignment out using the professional-grade word processing tools, including dictation software.

Scheduling Work

Nope – it’s not happening right now. When you are handling multiple responsibilities, it becomes more important than ever to ensure that you make the best use of the available time by finding something that will fit into the bandwidth you have available for mental effort at a given time. Most time management gurus tell you to be aware of what work is best performed at different times of the day, based on how demanding the specific work is.

Boiled down, what this means is that I can’t put off working on modules until after the end of the work day. Like most lawyers, I expend a lot of mental effort during the day, and by evening I’m not in the best frame of mind to do my best work for something that’s not an emergency.

Accordingly, what I find works for me is doing readings in the evenings after dinner, and depending on their length, lectures. I have found that litigation management goes well with red wine, although something with more body like a cab seems to work better than merlot or pinot noir. Coincidentally, World War II matched well with red wine as well, but including even the lighter varietals. I will usually let the subject matter sit until at least the following morning, and write the required assignment or report first thing in the morning when I am fresh.

Part of that is that the iPad isn’t the best writing tool – but part of it is that I know I can focus better on writing at my desk.

Music & Noise

Another aspect of the process I have explored in the last couple of years is what sort of sound accompaniment works best for study. I have known for a long time that I cannot listen to music while studying – I find it too distracting. This might be because I have a musical background and I can’t help but start paying attention to what is happening in the music. But pure silence is distracting as well.

Several years ago I started using a program called Focus@Will on my iPad. It is a subscription service that provides music that is selected its consistency and, candidly, substantive dullness. The idea is that it keeps your mind occupied enough to allow you to focus on your work, without distracting you. There are multiple channels since different people find different levels and types of sound more helpful than others.

More recently, I have been using brown noise at home when reading and writing because that seems to help me focus as well.

I have not needed anything at the office, likely because when we renovated of I installed a white noise system, so even when everything else is quiet, there is still a low level of sound that it turns out in addition to its sound – canceling characteristics, helps me focus as well. Of course all types of background noise are available on the Internet in the form of YouTube videos, so you can see which work for you.

I hope this is helpful – as always if you have any questions, ping me at michael.smith@solidcounsel.com

Mustang Corner

The southeast corner of Washington and Houston in Marshall is best known today as the Marshall federal courthouse, but once upon a time when I was growing up we called it “Mustang Corner” for reasons that had nothing to do with two-door Ford sportscars.

In the summer of 1976, Marshall lawyer Sam B. Hall, Jr. won a special election to fill the vacancy left by Wright Patman, who’d represented Texas’ 1st Congressional District since 1928, reversing his earlier defeat in 1962. His Marshall office included his longtime friend Harold Taylor of Arlington, who promptly set up shop in the small corner office downstairs – now the entrance of Judge Payne’s chambers.

Hall and Taylor had been friends since Sunday school growing up in Marshall, and in 1946 served as each other’s best man as they married (respectively) Jefferson and Waco belles Madeleine Segal and Mary Nell Durie.

You might ask yourself how a nice Waco girl ended up with a Marshall boy when neither went to Baylor? Well, Mary Nell – who was the eldest of the Kleypas grandchildren – was visiting her aunt and uncle Emma and Charlie in Marshall as she often did. In fact she (and her boy doll) was their very first visitor when they moved to Marshall from Waco after being married in 1927.

But 15 years later her she and her Marshall cousins Lucy Ann and Charlotte were interested in the real thing when she was introduced to local boy Harold Taylor by Lucy Ann’s friend Mary Jane Rickles (later Armstrong).

In the above photo Mary Nell and Harold are pictured in front of our family’s home in Marshall in 1946. Oh look, there’s my great-grandmother on the front porch.

So why did we call the courthouse Mustang Corner?

During World War II Sam and Harold both served in the Army Air Corps. Harold flew with the 317th Fighter Squadron of the famed “Checkertails” 325th Fighter Group, and named his P-51D “Mary Nell.”

But Uncle Harold was a really big deal to the next generation of cousins for a slightly different reason. It wasn’t because he’d been a fighter pilot in World War II and a POW (he went down over Munich in February 1945 and survived a beating at the hands of the SS to be liberated by Patton’s troops three months later) but because his P-51D Mustang – named for our mothers’ cousin Aunt Mary Nell – was one of the decal options in the MPC 1/72 P-51D Mustang kit.

I don’t think Mary Nell ever quite realized what the celebrity she was to her glue-sniffing adolescent nephews. Not too long ago I showed her the box art at a family reunion and it made no impression on her at all – I think she assumed everyone her generation had a plane with their name on it someplace.

Anyway, I was building a model of the Mary Nell this weekend because of course and was reminded of Uncle Harold’s connection to the building. He worked there when I was growing up, and was even in Judge Hall’s chambers when I interviewed for a clerkship 32 year ago. It wasn’t the most demanding of interviews, I have to admit. “I don’t need to ask you any questions,” Judge Hall told me, closing the folder Sue Jordan had made on me for him. “I know more about you than you know about yourself.” And he did. At that point he’d known my family over half a century, including in Harold’s case even before they “were” part of my family.

But that’s why we called it Mustang Corner. Because our war hero relative with the P-51D Mustang he named for his Waco sweetheart worked there.