Friend and colleague Michael Smith, who writes the excellent and authoritative E.D. Texas Practice Blog, tipped me off to a Texas Lawyer roundtable on Texas patent litigation procedure.  In addition to several Northern District of Texas judges (which are not nearly as relevant to retailers), Eastern District of Texas Judge Rodney Gilstrap and Magistrate Judge Roy Payne took part in the roundtable discussion.  What follows are key comments from Judges Gilstrap and Payne.

  • Time to trial for patent cases in the E.D. Texas is approximately 16 to 18 months.  As all of us who are there regularly know, the judges are keeping the cases moving quickly.
  • Both Judges Gilstrap and Payne are using evidentiary hearings more frequently (where appropriate) in motions to transfer.  They are also attempting to decide those motions earlier in the case, which is great news to retailers looking to move to their home jurisdictions.
  • On the use of technology at trial, Judge Payne has heard numerous jurors complain that lawyers put documents on the Elmo, but do not leave it up long enough for them to see it or only show the part of the document the lawyer is interested in, leaving the jury without context.
    • Judge Payne also noted that impeachment with the witness’s video testimony can be very powerful, when done well.
  • Judge Gilstrap warned against a trial (or lead) lawyer being tied to a PowerPoint presentation prepared by their young associate because the lead lawyer never took the time to learn the case.  When that happens, Judge Gilstrap is inclined to go ahead a couple of pages and ask questions which will show if the lawyer really understands its arguments.  There is no substitute for knowing the material you are presenting about.
  • Both Judges Gilstrap and Payne believe that local counsel, used effectively, is important in the Eastern District of Texas.  Judge Gilstrap pointed out that as a local trial lawyer for about three decades, he knows most of the local counsel well and they help him understand how the case will be handled.  He also pointed out that local counsel can be both very valuable and very effective when given thoughtful roles at trial.