Papers/Seminar Presentations

The latest issue of the Litigation Section’s “Advocate” quarterly is out, and this issue is a symposium on Intellectual Property. Of interest to readers, Judge Alan Albright of Waco has an article in it on the fair use defense in copyright cases, and I have a somewhat more interesting subject “The Effect of TC Heartland on Patent Litigation in Texas”. Hey, we just write what we’re assigned. My article is attached, and once the issue hits the Section website I’ll provide a link to the rest. I wanted to thank Docket Navigator for help with the relevant charts, which show patent case filing data for the district and the nation.

In the course of preparing and updating the cybersecurity paper for law firms that I present periodically, I have run across a lot of good information about how law firms should “disaster-proof” their practices, since a cybersecurity breach and a natural disaster (fire, ice storm, etc.) can have many of the same effects on a law firm, and require the same safeguards.

So I wanted to flag that the State Bar of Texas will host a free 4.25 hour CLE event for solo and small firm practitioners on March 27th, 2019 from 12:45 p.m. – 5:00 p.m. at Texas A&M – Texarkana. The program will prepare you for the many types of disasters that could affect your law practice and how best to handle them. I highly, highly recommend a course like this, because disaster-proofing is not hard to do – you just need to understand why it is important, and how to do it.

Topics include:

• State Bar of Texas Update
• Developing a Disaster Plan
• Law Practice Management
• Technology Short Cuts for Solos
• How to Handle Your Disaster Insurance Claim
• Ethically Closing or Selling a Law Practice

For more information or to register, go to http://www.texasbarcle.com/CLE/AABuy0.asp?lID=17459&sProductType=EV

A moment of personal privilege about the location of the event at A&M – Texarkana.

When I was an undergraduate at East Texas State University in Commerce in the early ’80s, ETSU had a satellite campus at Texarkana – which become A&M – Texarkana when ETSU joined the A&M System in 1996.

In the spring of 1984, the university was giving Forbes publisher Malcolm Forbes an honorary doctorate in Texarkana. I was the student government representative on the university’s honorary doctorate committee, so I borrowed my history professor’s car to make the trek to Texarkana for the ceremony in order to meet Mr. Forbes. The reason I was interested in him was that at the time Mr. Forbes was doing some articles in magazines about what he believed constituted good writing. They’re still worth a read today but this is the only one I’ve been able find. People generally were interested in Mr. Forbes for other reasons in those days, but those were the Years of Unfortunate Choices for the kid, so that was why I was. (No, I had not yet grown the mustache – I was working up to that Worst Of All Personal Decisions which would occur the next year).

But back to the subject of writing, in one of them that I cannot now find anywhere, Mr. Forbes said something about writing that I’ve never forgotten.

He recommended that writers treat words like they were dollar bills – don’t use a word unless you had to. Okay, when you stop rolling on the floor laughing that I of all people am quoting that as good advice, stop and think about what a useful mental exercise it is during the editing process. It’s not unlike Marie Kondo’s tidying mantra that any object that doesn’t “spark joy” should be discarded (after being thanked, of course). For someone that makes their living in a venue that has page limits, and in which the wise practitioner always strives to make briefing shorter, that’s always stuck with me. Don’t use a word unless you must.

But do consider the seminar, or look for something similar in your jurisdiction. It’s well worth your time.

My annual contribution to the Texas Bar Journal’s Year in Review issue on patent litigation during the previous year is out. You can access the issue here. (If the link isn’t working, go to https://lsc-pagepro.mydigitalpublication.com/publication/?m=21412&l=1#{%22issue_id%22:551479,%22page%22:0} ).

The publishing schedule was accelerated a bit this year so that my new O’Connor’s Federal Rules was waiting for me in my office this morning. The “Texas Edition” means that the book has the local rules for all four Texas federal districts in the back of the book, which is a handy way to keep the most important rules for Texas practitioners in one place. It’s hard to believe this is the 22nd annual edition of this book that I’ve worked on. The author picture on the back is starting to look like Dorian Gray.

Had a great time yesterday with Suann Ingle presenting on the use of social media in jury selection as the snow began to fall in NYC.  I was the only person who seemed to enjoy it last night.

Which changed this morning when my flight back to Texas got cancelled, meaning I’ll spend my 22nd anniversary hanging out in LaGuardia, looking out the blue, blue skies – largely empty of airplanes.

But I have all my favorite toys with me, so it’s actually not a bad place to get work done.  And as we were planning to spend the weekend to Dallas anyway, I won’t even have to do the 2 1/2 hour extension to Marshall tonight.

I am looking forward to participating in a panel The Impact of Heartland on District Court Litigation at the ABA Section of Intellectual Property Law’s 33d Annual IP Law Conference this Thursday April 19, 2018 at the Crystal Gateway Marriott in Arlington Virginia. Our panel also includes: The Honorable Sherry R. Fallon United States Magistrate Judge U.S. District Court for the District of Delaware Jennifer T. Salinas Partner, Troutman Sanders LLP Irvine, California Frederick L. Cottrell, III (moderator) Director, Richards, Layton & Finger, P.A. Wilmington, Delaware According to the conference materials we will spend an hour and a half discussing “the impacts of the Supreme Court’s Heartland Decision on Patent Litigation and Venue Challenges Across the Country.”  They’re capitalizing all the nouns, so you know this is important stuff. The somewhat less breathless description of our topic states that  “[t]he Supreme Court’s Heartland decision has changed the patent litigation landscape across the country. The impacts are most evident in active patent litigation Districts in Texas, Delaware, and California. Implications for those jurisdictions, as well as, other venue issues arising from Heartland will be reviewed and discussed.” And discuss them we will.  I have really enjoyed working with my fellow panelists to prepare this presentation, and moderator Fred Cottrell has done exemplary work putting together one of the most informative slide decks on this topic that I have seen.  We discuss what’s happening in the caselaw and then in our respective districts, so I’ll be talking about what has and hasn’t changed about litigating patent infringement cases in the Eastern District of Texas since Heartland. Most of the time my job seems to be to point out that most of the significant issues we will be discussing are up on mandamus at the Federal Circuit, so it might be best to take notes in pencil on this one …

It’s a beautiful morning in Marble Falls deep in the Texas Hill Country as my copresenter Tony Sauerhoff from Fifth Circuit IT security and I prepare to speak at the annual WDTX Bankruptcy bench/bar on the topic of cybersecurity for law firms.

I can’t access the paper at the moment, but I’ll add it to this post when I get back the piney woods tonight. (Subscribers click through for the link).

Was able to shoehorn in a couple of other events on this trip, including dinner with the Baylor freshman in Waco Wednesday night, breakfast at Magnolia Table in Waco yesterday morning (thank you Chip and Joanna!) a CLE planning  meeting for this fall’s UT civil litigation seminar in Austin yesterday afternoon, and a quick trip to my favorite hobby shop in Austin for some new publications on 1942-era carriers. (There may have been a model or two as well).

I’ll be starting a two-site presentation on evidence next week at the TexasBarCLE Advanced Evidence and Discovery Course in Dallas.  It’s the first of three CLE presentations on different subjects over the next three weeks, culminating in a panel on the effect of TC Heartland at the upcoming ABA IP seminar in DC on April 19. My paper deals with the nuts and bolts of getting evidence in.  But as I discovered when I started working on the paper, most activity on evidentiary issues is now at the pretrial stage, with very little activity – at least in my practice – coming at trial, since most exhibits are preadmitted.  So to my mind the most helpful paper on getting evidence in would be on how to list it, object to it, and respond to objections at the pretrial stage, with trial being something of an afterthought from an evidentiary standpoint.  And what matters at those stages is, candidly, not quite what the rules indicate matters, so I tried to present the parts of the rules of evidence that practitioners should actually be spending most of their time worrying about.  I always worry when I try to be helpful as opposing to reciting caselaw and listing rules as they appear in the rules, but I think the end result is pretty good. It is, candidly, troubling that even the slides are finished and off to the Bar eight days before the presentation, but even procrastinators fall short and get something done on time once in a while. Subscribers can download copies of the paper and the slides below.  But no spoilers for attendees, okay?

I am presenting a paper “Evidence: Getting It In” at the State Bar’s 31st Annual Advanced Evidence and Discovery seminar in April and May in Dallas and San Antonio, respectively, and am already hard at work updating my standard materials on evidence. The problem is that the other speakers have taken some of the juicier bits and pieces of my evidence stories, so I am having to dig for tips and pointers that are a little less obvious.

So let’s try a little crowdsourcing here – readers, if you have any good evidence stories or tips, please shoot them to me at michaelsmith@siebman.com. I’ll credit you in the paper and online.