The Local – Joey Hartstone

On this week’s New York Times recommended reading list is a new legal thriller – this time set in Marshall and featuring a (fictional) local patent lawyer.  I thought readers might like a review from a local perspective.

The book is a murder mystery set in Marshall, and features a native Marshallite (and former law clerk) who works as local counsel in the burgeoning patent docket.  So the three things you might want to know are (1) how close is the book’s EDTX patent docket, compared to the real thing; (2) how close is the book’s Marshall, compared to the real thing; and (3) is it a good read?

The Book’s Eastern District of Texas Patent Docket

Authors of fiction have the privilege of altering reality when selecting the setting for their book.  For example, Jake Tapper’s recent political thriller posited a world where vacancies in the U.S. House of Representatives are filled by appointment by governors.  That allowed him to install an unusually politically inexperienced congressman as required for the plot of his book.

Similarly, here, either because he didn’t consult sufficiently with a patent lawyer or decided for his own reasons to alter the structure of the local patent docket, Hartstone created a docket where patent venue can be established wherever a single act of patent infringement has occurred, and the entire Eastern District of Texas consists of a single district judge presiding over a court where jurors are drawn exclusively from the citizens of Marshall Texas, which he assumes would mean six high school degrees between eight jurors, with at least one not only illiterate but vocal about it. So when the courtroom deputy came up one copy of the court’s instructions short in a patent trial, Juror Number Three tells the judge not to worry about it because “I can’t read none anyway.”  Uh, not quite.

Hartstone’s EDTX docket originated with judge-created patent rules, which is accurate enough, but he departs from the real district by characterizing the docket as being based on EDTX jurors awarding “ungodly sums of money” which he attributes to jurors “who are overlooked for their entire lives” being given a modicum of power.  In truth, local patent verdicts tend to skew low – not the 20x what the (fictional) plaintiff asks for, establishing the docket.  The reason the EDTX docket started out with 18 straight plaintiff wins in the early 2000s had nothing to do with the jurors, but with the defense trial teams from patent prosecution shops who simply didn’t know how to try a lawsuit before a jury compared to the former personal injury lawyers that were representing plaintiffs.  By 2006 they had figured this out, and ever since verdicts have been almost exactly even, with some years (2007 and 2013 come to mind) representing bloodbaths for plaintiffs.  In general, the district portrayed in the book is the district portrayed in the recurring hatchet jobs about the Eastern District in the popular and legal media – right down to the skating rink “that Samsung put up.” Locals know better – in fact I was the city commissioner that moved approval of budget for the city purchasing and installing a skating rink for our Wonderland festival two decades ago – years before Samsung knew that Marshall was spelled with two “l”s.

The portrayal of what local counsel do is also a little off – we rarely get to close, and no lawyer in Harrison County has ever stood in front of a local jury and said “Go Mavericks”.  Why?  Because whether it is a state court jury chosen from the citizens of Harrison County, or a federal court jury chosen from six counties, Marshall is only one of many high schools in the area, and the quickest way to piss off anybody locally is to make a derogatory comment about their high school.  But, again, the book assumes that both federal and state juries are chosen only from the residents of the city of Marshall, so the above doesn’t apply.   And that actually enhances a few plot points, so, again, I’m not certain that the author – a screenwriter – didn’t deliberately simplify the judicial system for his own dramatic purposes, building in a local bias.  Which, again, is completely legit.  I just mind when Congressmen do it.

But for purposes of the book it is a distinction without a difference, since while I was expecting Hartstone to base the novel on a patent infringement case, and the supposed predilections of local jurors in federal court, which is what he initially seemed to be laying the groundwork for (and knowing the shows he’s written for it seemed likely) the novel goes in a completely different direction.

Thus while the novel’s characterization of practice in federal court – with banging of gavels and multiple fistfights in court and f-bombs lobbed at district judges by lawyers and litigants alike – is quite entertaining, if something less than accurate, the action quickly moves out of federal court.

The Book’s Marshall, Texas

Okay, no book about Marshall that was written without someone from Marshall looking over the author’s shoulder is going to be perfect, but this one is pretty damn close.  Hartstone has clearly never actually been to Marshall (he repeatedly refers to the Confederate soldier statue on the square as bronze, and makes a mistaken topographical assumption that will become important later) but he gets the big things right – how much we know about each other, how far back experiences and disputes go, and how important high school football is.  I particularly enjoyed his illustration of just how much of a jackass someone in a small town can be. It’s a full-time job for some people. Sometimes an inherited position. And characters repeatedly identify with and relate back to incidents in high school football, and that’s exactly how we are.  I was walking the first New York Times reporter around town 20 years ago and told him that the right question would start a 15 minute story about the late 1980s and early 1990s Marshall football teams – and not just the one that won the state championship in 1990, but the one built around Odell Beckham a few years earlier.  (Like my dad, Odell went on to play football at LSU, and later had a son who played football too). Hartstone knows where the closest federal correctional facility is, what the hotels are, and if he doesn’t describe the downtown parking arrangements around the courthouse with complete accuracy (to say nothing of the security ones), it becomes clear later in the book that he needs a specific setting for his plot.  And no, the old courthouse courtroom doesn’t have mahogany floors, but it is a terrific place to try a lawsuit.

So points for a pretty accurate depiction of the town, even if the constant references between fictional Marshallites to the “old Harrison County Courthouse” and the “main/town square” are a little grating.  (It’s the “old courthouse” and “the square”).

One other thing.  Every book club in town is interested in who the characters “really are”.  It is to the author’s credit that it is absolutely plain that none are based on a real person.  Clearly the judge at the beginning of the story did the same thing that Judge Ward did in 2000 coming up with patent local rules, but neither that character nor any of the others bear any similarity to any of the judges or lawyers that I know either in federal or state court.  Which isn’t surprising – Hartstone is an experienced screenwriter and didn’t develop the story by coming to Marshall and talking to local lawyers and judges and then lightly fictionalizing a story about a case.  He came up with a story and characters, and realized the story could grow out of a setting he’d heard about from patent lawyer friends. It’s not a story about the patent docket per se.

The Murder Mystery

So how good is the actual story?  I read it three weeks ago when our family was on vacation.  I downloaded the morning we started one of two half-day tours in Vienna, and stayed up till almost 3 am to finish it.

As I said, Marshall and the federal patent docket is only the setting for the beginning of the story.  After that, you’re in a small Southern town familiar as a legal thriller setting for generations, and your attention is on the characters and the plot twists.  And that’s what kept me up half the night finishing the book – I just couldn’t put it down until I knew whodunit.

And it was only at the end that I figured out why the story wasn’t making sense to me – it was because I’m too Marshall.  The plot of the story places particular emphasis on the local counsel’s office at the corner of Franklin and Bowie, and what could be seen of the federal courthouse from there.  But I could never get past that – because that was my Aunt Toddy’s house.  She was actually the aunt of a friend of my dad’s, but I grew up mowing her yard, and when after she passed her home became everyone’s favorite downtown restaurant, it was actually where my wife and I had our first date.  And I knew you can’t see the back door of the federal courthouse from there.

I finally figured out that the author had assumed there was a line of sight from the fictional law office to the back door of the courthouse.  And there would have been, had the topography not resulted in a drop of several dozen feet between the courthouse square which, as locals know, is on the hill where in 1843 Peter Whetstone pulled out his whiskey jug and proceeded to get the commissioners deciding where to site the new town so drunk they decided to call it a day and put the town square on Whetstone’s property.

So yes, I highly recommend it.  But not for the patent docket or local counsel aspect.  That’s just where the story starts.

It’s Not All Rainbows and Ponies – Laura Shepperd

There are some loud people in Marshall, and Laura is definitely two of them.  And that’s a good thing.

Marshall being Marshall, when I started working with paralegal Laura Shepperd 24 years ago, she was the third member of her immediate family I’d worked with.  She helped break me in over the next 10+ years and teach me what would get you killed by your legal assistant, which is what we called them back then, with the exception of Scotty Baldwin, who simply yelled “goddamn Hiser” or, for variety, “Hiser goddamn”.  The problem was that anything Scotty said was so persuasive it was like listening to Charlton Heston call for bigger Post-Its as if the fate of the people of Israel depended on it, so I really missed when the old firm moved into bigger offices because you couldn’t hear him hollering for dear, sweet Jean.

Back when we were in high school in Marshall, Laura was active on our school paper, and then went on to pursue a degree in print journalism, writing for The Battalion at Texas A&M University as a student and then briefly as a reporter at the local newspaper. After raising three children and working twenty years as a legal assistant, she left legal work and began focusing on her writing.  I recently finished her debut, It’s Not All Rainbows and Ponies, a memoir about her treatment for alcoholism several years ago.  You can read about the book in the Marshall paper here, including an interview with Laura, but I wanted to take a few minutes to focus on her book and its subject of treatment.

Substance Abuse

It’s not news that substance abuse, including alcohol, is an issue in the legal profession – it’s something that the State Bar of Texas works very, very hard to help lawyers with through the Texas Lawyers’ Assistance Program.   One thing Laura’s book points out is that it isn’t just lawyers that suffer from alcohol abuse – the people around lawyers face the issue as well, including lawyers’ staff and families.

What her book does is detail her treatment for her problem – her trip to rehab, her experiences in rehab, and her successful return to sobriety.  What the book does not cover, as the Marshall paper inadvertently implied, is her successful treatment for breast cancer, which she was diagnosed with just days after the book was published last year.  But for her, the experiences were related.  “I definitely think overcoming my addiction helped me deal with breast cancer,” she has said. “My faith is so strong. My faith grew so much in rehab. When I was diagnosed, I knew God was with me and I would be OK no matter what.”  So a little known side benefit of rehab – it helps prepare you for cancer.

So why is this book worth your time?  First, it’s a good read, and second – we all need to know this.

Good Writing

The first thing that’s important to know about Laura here is that she can flat write.  Reading someone’s experience in rehab is not an intuitively pleasant experience, but she really puts you there.  She tells you – skillfully – what she was thinking and feeling, and not a page went by that I wouldn’t see a turn of a phrase and think “I wish I’d said that.”  She tells the reader what it was like, and gives the reader an understanding what rehab was like – the detox, the effect on her daily life, the emotions of leaving her family – and if you know Laura, you know that her family is even more important to her than the Fighting Texas Aggies (whoop!) and the Dallas Cowboys. (Personally, I think she’s faking the Texas Rangers thing, so I’m not including that).  When you read history like I do, sometimes you’re forced to endure some really bad writing in memoir form by a lawyer or a soldier or politician just because you want to know what they did.  This is not that at all – it’s the Memoirs of Ulysses S. Grant of rehab experiences. (Trust me – that’s high praise).  You’ll learn about rehab, but it’s not unpleasant, and what becomes clear not far in is that there is great love and pride in the experience – love and pride that she and others carry away to help them in their lives back home.

You Need to Know This

And that’s the other reason why you need to read this.  Whether you are contemplating seeking assistance yourself or advising or counseling a friend or family member that is, this gives you an insight into what it is like.  One thing that being around the State Bar has taught me over the last twelve years is that we serve our profession better when we can help each other.  Being able to counsel a colleague about treatment is something that ought to be in all our toolkits.  If we see a friend or colleague in need, we know to know what they can do to get help – see TLAP supra – and be able to talk knowledgeably about the process.

Why is that important?

Because deciding to get treatment in rehab is a scary, scary thing, Laura tells us.  It’s so scary I don’t see how she brought herself to do it.  But the scariest thing, she makes abundantly clear, is the uncertainty – the not knowing what’s going to happen next, and what to expect.  When her daughter carried her to rehab and dropped her off, she had no idea what it would be like.  But after reading this book, we do.  We know that nothing that happens there is something to be afraid of, and we understand from someone who’s been there that there is nothing as bad as doing nothing.  It reminds me of what Sting once said in a slightly different context.  “Marriage,” he told Rolling Stone, “is a hard, hard gig.  But the rewards are infinite.”  (Nobody tell my wife I analogized marriage to treatment for alcoholism, okay?)

Funny as Hell

The other  thing that you have to know about Laura is that she is funny as hell.  At least three times a page she would make some smartass remark to herself and I’d smile because I knew this wasn’t taxi wit – I’d heard her say it out loud before in real time.  If she was going to be in rehab, there was going to be humor found if it had to be at knifepoint.  My absolute favorite part of the book was when she decided to make a hobby out of harassing this one nurse every time she saw her.  If her pills were not right – it was that nurse’s fault.  If something wasn’t right with her blood pressure – well, you know it only happens when I see you Miss Louise …

It may be an East Texas thing, but I once heard an outsider observe that “the first thing you say about someone is always bad,” and if we like them, we do it to their face.  I remember Judge Hall was a master of it.  If he wasn’t complaining about you, it kinda hurt your feelings.  Laura loved the people she was around – but she still gave them a lot of shit.  Reminds me of a sweatshirt she once got her boss that said “I Yell Because I Care.”  It’s like that.  Or as Scotty would have put it, “Hiser, goddamn.”

You’ll like it, and you’ll learn something useful.  What more could you ask for?

Book Review: Patent Litigation Primer: A Guide For Inventors And Business Owners – Robert A. Klinck

A couple of years ago I had the pleasure of working with a lawyer from Washington DC named Bobby Klinck defending a client in a patent infringement case in Marshall.

Shortly after our case wrapped up, Bobby told me that he had written a book on patent litigation, Patent Litigation Primer: A Guide For Inventors And Business Owners, which he explained to me was intended to help fill a gap that he saw in practice in the information available primarily to inventors and business owners.

Patent Litigation Primer gives new participants in patent litigation knowledge of the relevant legal concepts and procedures. It is, as its title reflects, primarily directed at inventors and business owners, but is also useful to people who regularly advise them, such as business lawyers, and specifically lawyers without in-depth knowledge of patent litigation.

Bobby has aggressively pruned the citations in the book, so with few exceptions if you already have had any experience in a particular portion of the world of patent infringement litigation, the book won’t be telling you something you didn’t already know – albeit in much more concise language. But what I was struck by as I read the book was how few participants have experience with all the different stages of the process, from patent prosecution to litigation to patent office proceedings.  The book covers them all.

For patent litigators, there is much here that is of interest because it isn’t what we deal with every day. When he goes through the more in-depth discussion of the substantive issues, the discussion is concise and helpful for confirming that you have identified and explained all the major issues to your client, but it is really more for your client to give them a working knowledge of the issues that you are talking about.  Judge Kinkeade in Dallas likes to joke that patent litigation is like Lord of the Rings, and not because there are trolls, but because the language is often not English at all.  This book fixes that.

There is an entire section dealing with litigation, and reading it I was struck by the realization that while while there is nothing here that anyone that has ever litigated a patent case from soup to nuts would not know, there are many, many lawyers litigating patent cases today that have not.  How many of us have experience advising a client, starting with the initial client meeting, when a potential patent infringement claim is worth bringing?  Similarly, many patent litigators, candidly, have never seen a trial that didn’t involve actors and a LCD display.  This helps remedy that.

I highly recommend Patent Litigation Primer as a reference guide for clients, and I keep a copy on my iPad for reminding myself of what exactly it is that a client might want or need to know about different parts of the litigation.

Patent Litigation Primer