“The Work Will Teach You How To Do It: Lessons from Patent Litigation Courts On The Use of Limits on Case Activity to Effectively Manage Litigation Costs – Thesis for Litigation Management LL.M.

I am happy to report that they let me walk the stage Friday in Waco after finishing the last on-campus week for my Executive LL.M. in Litigation Management at Baylor Law School – the only LL.M program in the nation for litigation management. We covered every stage of the litigation process to identify efficiencies and current trends, and while there was little in the program I didn’t know at least something about from 31 years in a litigation-only practice, I learned valuable new skills and tools to do things better than I had been doing them.

I doubled down on the subject of litigation efficiency in my thesis, “The Work Will Teach You How To Do It: Lessons from Patent Litigation Courts On The Use of Limits on Case Activity to Effectively Manage Litigation Costs.  We were required to prepare two versions of the the paper – a full version (approx. 29 pages with over 60 citations, mostly to case management orders in patent litigation) and a shorter five-page version. The five page version is here – the full version is available to subscribers and court staff below, and I hope all will be interested in the comparative analysis of the procedures across some of the more popular patent courts.

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

Document review stands

Grayson in the demo’ed building with some of the 1897 shelving stacked for reuse as trim and, later, furniture. Compare to Mose Weisman in photo below.

As readers know, I do a bit of woodworking from time to time, especially since I inherited the half a linear mile or so of 100+ year old original growth pine shelving in the old Hub Shoe Store that we renovated into my law offices in 2009-2010.

I’ve built shelves and book racks with details based on the store’s original storage cabinets, as well as a couple dozen handmade photo frames with giclees of an original painting of a local jury box for the board members my year as chair of the State Bar’s Litigation Section.

Hub 001 & 002 – book racks

The latest project is a slant-top stand I use for reading and editing documents, both on paper and on my iPad.

The handmade frames for my LitSec board colleagues turned out to be quite a project

Hub 003 – shelves (shown under construction)

Review stand prototype with parts cut for two improved versions (with photobomb by a piece of lawn furniture I was painting at the time)

The photo at top of the post shows the first prototype in the background, with the two second prototypes in the foreground. I stained them differently to match the Kariels’ two desks in the old store, which we still use in one of the attorney offices on the visiting side.

In order to use them both as a slant-top editing desk and a copy stand I designed them with different slopes on the back so you can use them as both – just flip them 180 degrees. I resized the surface to accommodate not just iPads and papers, but Circa notebooks, since that’s how many of the documents I work with are bound.

Hub Shoe Store founder Mose Weisman shortly after store opened in 1897 – see shoe stand at right.

Interestingly, this photo of the original owner of the Hub Shoe Store Mose Weisman in the store shortly after its opening in 1897 shows something fairly similar at right, which appears to be a stand for displaying a shoe.

I like the stands because they eliminate glare and make it easier to read documents both because of the angle and because they seem to hit the sweet spot for my reading/computer glasses. But I still plan to build another set with improved dimensions, finish, and “pencil rail” design.

Law Office Management: E-mail processing & to do lists

Since I began operating my own office ten years ago, I’ve been interested in law office management.  Specifically, how do lawyers in any size office handle the routine administrative overhead of running a law practice, with an emphasis on personal productivity when you control the tools you use.

I’ve written before on personal productivity topics, including techniques as well as tools such as programs, and wanted to update with some of the tools and techniques that are working for me now.

Task List Program

Three years ago I posted that I had switched back to Remember the Milk (RTM)I still like the program, but not long after that I switched again, to ToDoist.  Aside from the aesthetic reason that it has more colors to play with (let’s be honest – that was a significant reason) it has better tools for handling projects, and for assigning tasks to my assistant.  It plays well with Evernote and my other tools, and can pick up tasks by voice command through Alexa and Siri, which is an added bonus.

It also means that when I have a little down time and want to brainstorm on projects, or organize projects, I can do so in the task program that lets me create subitems.  RTM really didn’t allow me to do that, although I think it may have added features like this later.  ToDoist isn’t perfect, but it lets me warehouse all the things I want to, and organize when I want to do them.  The biggest hole compared to RTM is the lack of a “location” field, but there are workarounds for that using labels and filters.

E-mail processing Technique: Keep In Box Empty – put all emails in three sub-folders

I have forgotten where I originally read this, but many sources make this same recommendation.  The basic rule that I started following several months ago, and have found to make a huge difference in my productivity and relative stress level is:

  1. Process all incoming emails by assigning them to the necessary subfolders
  2. Work those subfolders daily

Here’s the idea.  As emails come in, once you have more than you can work as they come in, they should be reassigned to subfolders so that less urgent ones are shunted aside for later treatment.  The subfolders should be few in number and must be regularly processed.  These are the folders that work for me:

  1. Action Needed
  2. Reading
  3. Billing

The key to this system working is having the right subfolders for you – a strict application of GTD (Getting Things Done) would have more and different ones, but these are the ones that work for my practice.

Doing this is typically the first and highest priority “to do” in ToDoist each day.

Action Needed Explained – If an email requires further action, and I don’t have time to do it right then, I send it to “action needed” which becomes a stack of emails that need to be worked.  Theoretically each email would then become a to do in ToDoist, and for a while I experimented with forwarding the emails to ToDoist so that they automatically became tasks, but there were three problems.  First, for some reason sometimes ToDoist didn’t catch the items, which you can be would be an issue. Second, it was an enormous time suck manually creating tasks for individual emails. And third, I usually still needed the original email to respond to or to refer to information in.  So I began simply working emails in this folder, or if the tasks is a larger one, creating a to do or an Evernote note, but finishing the tasks by responding to, and then deleting, the email in AN.

So now processing this folder is a daily “to do” in ToDoist but with a fairly high importance level so that work here doesn’t stagnate.

Reading Explained – A significant portion of my daily emails are non-case reading. Newspapers, magazines, blog posts, and so forth.  These are all shunted to this subfolder rather than being read as they come in, and when I have time, this folder gets worked.  As you would expect, this is a daily “to do” in ToDoist as well, albeit at a lower level.

Now I am spectacularly unsuccessful at keeping this folder empty – at present it has 2,218 emails and dates back only several months.  But that’s an indication of the system working.  It’s not the end of the world if I haven’t read a blog post on how and when to wear a cravat, or daily summary of articles in one of the newspapers I follow, and now those posts aren’t getting in the way of work-related emails.

To reiterate, this is not case-related reading.  Anything case related that I don’t read immediately – which I usually don’t for reasons I’ll get to – does get its own ToDoist entry under “Case Reading” with the necessary information (case, docket # and date) so I can sit down with the iPad and read and annotate filings as needed after my assistant has downloaded and filed them.  I tend to do this in blocks, and not as the documents come up, and the new split screen feature on the iPad means that I can have the reading list open in ToDoist while I have the document open for reading and highlighting in iAnnotate.  So if I delay reading filings just a bit, I can capture my highlighting and any annotations in my directories for case filings.

Billing Explained – in cases where I’m billing a client for my time, I may not prepare the billing entry at the same time I do the work of reviewing and responding to the email. Or the email may include work that is something that needs to be done within the current billing cycle, but not immediately.  If that’s the case, once I’ve confirmed that’s the case by either doing the work or confirming that nothing needs to be done immediately, I send the email to the B folder.

Again, this folder gets reviewed, and typically processed to zero, on a daily basis.  But in a pinch it can grow substantially while I’m working on more urgent matters, and then processed before the billing cycle is finished.  Nothing goes in it that can’t handle a little delay in creating the relevant billing entry.

E-mail Programs

Because my emails are run through a couple of steps for security purposes before I review them, I have pretty broad options as far as how I view the finished product.  While I do most of my work in emails in the main program I use, I’ve started using an iOS app, Spark, for initial processing on my phone and iPad much of the time.

Spark has a unified “smart in box” for emails but breaks things out by broad categories of Personal, Notifications and Newsletters, and then moves everything to “Seen” once you’ve viewed it.  But the major benefit is that you can swipe the email into one of the three folders from the in box, or “pin” or “snooze” it for later attention.  So at a glance you can see what’s new, assign it if you have time to swipe, or just pin it to look at in a few minutes.  It works really well on a phone or tablet to stay on top of emails and get to a modified version of email “zero” because viewed emails are moved out of Spark’s”smart” in box as you view them, although they actually stay in your in box.

While you can view and work emails in the subfolders, because it threads the emails (which I hate) it is not nearly as good a tool for that use, and I typically switch to other programs to actually work the emails in the folders.

So those are the tools I’m using lately. Not saying they’ll be right for you, but thinking about them may help you get there.