Archive for category: Updates

Junior Attorneys Argue Post-Trial Briefing Before Judge Kronstadt

On March 6, 2017, second year associate, Oliver Richards, and seventh year associate, Joanna Fuller, argued post-trial motions before Judge Kronstadt in the Central District of California. The case began in 2013 when CH₂O, a water treatment company, sued competitor Meras Engineering for infringing ITS patent on environmentally-friendly technology to clean and re-use water. CH₂O later added Houweling’s (a large hydroponic farming operation with facilities in the U.S. and Canada) as a defendant. Houweling’s had switched its water treatment supplier from CH₂O to Meras, and the two defendants were infringing CH₂O’s patent. The case was tried in two sessions over the summer of 2016 and resulted in a verdict in CH₂O’s favor. The court scheduled a hearing on post-trial motions, including motions to set aside the jury’s verdict and for new trial, for March 6, 2017.

As a part of continuing efforts to provide junior attorneys with opportunities to gain experience in the courtroom, Fish & Richardson filed an advance “Notice of Argument by Junior Attorneys” informing the Court that it intended to have Ms. Fuller and Mr. Richards argue at the hearing.

Before oral argument began, Judge Kronstadt acknowledged the filing and told Fish Principals Chris Marchese and Andrew Kopsidas that he would permit them to sidebar with the junior attorneys during the hearing if necessary. Ms. Fuller and Mr. Richards addressed several post-trial motions, including motions for injunctive relief and for supplemental damages and prejudgment interest. Mr. Richards was primarily responsible for drafting the post-trial briefs, and Ms. Fuller had been a member of the trial team. Thus, both associates were deeply familiar with the issues and record.

Mr. Richards, who clerked for Judge Dyk in the Federal Circuit before joining Fish & Richardson, commented, “I have watched hundreds of oral arguments as a clerk and I never thought I would have an opportunity to do on-my-feet lawyering so early in my career.”  “It was an enormously positive experience, I look forward to future opportunities to do it again.”

CH2O, INC.’S NOTICE OF ARGUMENT BY JUNIOR ATTORNEYS
Case No. CV-13-8418 JAK (GJSx)

Counsel for Plaintiff CH2O writes to inform the Court that Plaintiff intends to
have two junior lawyers argue some of the post-trial motions to be argued at the March
6 hearing scheduled in this matter.

As a number of courts have recognized, “in today’s practice of law, fewer cases
go to trial and there are generally fewer speaking opportunities in court, particularly
for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g.,
Secured Structures, LLC v. Alarm Security Group, LLC, Civ. Act. No. 6:14-CV-930
(E.D. Tex., Mitchell, J., Jan. 22, 2016) (available at
http://nextgenlawyers.com/files/Judge-K-Nicole-Mitchel-EDTX-Order-
Jan2016.pdf); see also http://chipsnetwork.org/wp-content/uploads/2016/02/Judicial-
Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com (judicial orders). As
former Judge Grewal of the Northern District of California recognized, this trend
raises a serious question: “who will try the technology cases of the future, when so
few opportunities to develop courtroom skills appear? It is difficult to imagine
handing entire intellectual property trials to a generation that never had the chance to
develop those skills in more limited settings.” GSI Tech., Inc. v. United Memories,
Inc., Case No. 5:13-cv-01081-PSG, Order Re: Oral Argument (N.D. Cal. Mar. 9,
2016) (ECF No. 1112) (available at http://nextgenlawyers.com/files/GSI-V-United-
Memories.pdf).

Fish & Richardson is a proud leader of the Next Gen Committee, dedicated to
creating opportunities for junior lawyers to develop their “stand up” skills. A number
of courts now encourage parties to be mindful of opportunities for young lawyers to
argue in court. E.g., Scheduling Order Specifying Procedures (Guilford, J.) (“The
Court strongly encourages the parties to give young associate lawyers the chance to
examine witnesses and fully participate in trial (and throughout the litigation!).”);
Guidelines for Final Pretrial Conference in Bench Trials Before District Judge Lucy
H. Koh ¶ G (Jan. 3, 2011); Standing Order Regarding Courtroom Opportunities For Relatively Inexperienced Attorneys (Talwani, J.) (D. Mass. Oct. 9, 2015) (all available at http://nextgenlawyers.com/).

Plaintiffs respectfully notify the Court that they intend to have second year
associate Oliver Richards and seventh year associate Joanna Fuller argue certain
motions at the upcoming hearing for post-trial motions. Mr. Richards was the primary
drafter of the post-trial briefs and is intimately familiar with the issues and the record
in this case. Ms. Fuller was a member of CH2O’s trial team and has been involved in
all aspects of this case since nearly the beginning.

Given the importance of the issues to be argued, Plaintiffs respectfully request
that more experienced counsel be able to assist in the arguments should the need arise.

Written by: Dalia Kothari, April 6, 2017

On March 1, 2017, Mathias Samuel of Fish & Richardson filed a notice that a junior attorney would be arguing at an upcoming hearing—this time, before Judge Nelson in Minnesota District Court. The notice explained that Conrad Gosen, a fourth year associate, would be arguing the construction of several contested terms related to technology for electrical generators and motors in an upcoming Markman hearing. On March 10, 2017, the hearing took place and Mr. Gosen argued along two Fish & Richardson partners, Mathias Samuel and Rob Courtney.

Explaining his experience, Mr. Gosen said “I am very grateful for the opportunity to have argued several claim terms for our client during a recent claim construction hearing. Newer lawyers often struggle to get any ‘on your feet’ experience arguing in court, and so the opportunity to represent my client before the judge not just at a hearing, but at one of the most critical junctures of a patent case was a very rewarding experience.”

Similar notices have been filed by other Fish & Richardson principals creating opportunities for junior lawyers to argue in court, including in cases before Judge Koh and Judge Kronstadt in the Northern and Central Districts of California. The notice in this case was given in a letter, which is reproduced below and can be cribbed from and improved upon as a model.

Dear Judge Nelson:

On March 10, 2017 at 1:00 p.m., this court has scheduled argument on the parties’ claim
construction briefing in this case. As a number of courts have recognized “in today’s practice of
law, fewer cases go to trial and there are generally fewer speaking opportunities in court,
particularly for young lawyers (i.e., lawyers practicing for less than seven years).” See, e.g.,
Secured Structures, LLC v. Alarm Security Group, LLC, Order, Civ. Act. No. 6:14-CV-930
(E.D. Tex., Mitchell, J., Jan. 22, 2016); http://chipsnetwork.org/wpcontent/
uploads/2016/02/Judicial-Orders-re-Next-Gen-3-9-16.pdf; www.nextgenlawyers.com
(judicial orders). As such, a number of courts “strongly encourage[] the parties to be mindful of
opportunities for young lawyers to argue in front of the Court, particularly for motions where the
young lawyer drafted or contributed significantly to the underlying motion or response.” See,
e.g., id.

Cutsforth believes the upcoming claim construction hearing affords such an opportunity and
respectfully notifies the Court that it intends to have fourth year associate Conrad A. Gosen
argue for certain contested terms at the upcoming claim construction hearing. Mr. Gosen has
been deeply involved in the case for several years. Other lawyers for Cutsforth will argue the
remaining terms. Cutsforth does not believe this division of the argument between Cutsforth’s
various counsel will unduly complicate the proceedings, and it will not require any additional
time beyond what the Court has already allotted for the hearing.

Written by: Dalia Kothari, April 5, 2017

Litigation is not what it used to be. The vast majority of lawsuits tend to settle rather than go to trial, due in part to high cost and the rise of alternative dispute resolution. This “vanishing trial” trend, first coined by Professor Marc Galanter in 2003,[1] means less than 1% of civil cases filed in the United States District Court system actually go to trial.[2]

Because trials are now relatively rare events, they are typically high stakes affairs reserved for the most experienced lawyers. This new practice is perpetuated by firms, and their clients, who are reticent to use a “bet-the-company” case as a teachable moment for junior lawyers. While practical, this approach stunts the growth of junior attorneys—often times delaying their exposure to courtroom oral advocacy by many years. Ultimately, this reduces the overall caliber of trial lawyers.

In response, at least 17 federal district court judges have made steps to remedy this problem.[3] Using the judicial version of a bully pulpit, they have issued standing orders that strongly encourage the active participation of junior lawyers in their courtrooms. For example, some suggest that litigants allow junior lawyers to argue motions and examine witnesses. Others offer incentives, such as the possibility of holding an oral argument on motions that would otherwise be decided on the papers if argued by a junior lawyer. All acknowledge the current dearth of junior lawyers appearing before them.

For the first time, an entire Circuit will be considering a resolution that promotes orders encouraging parties to allow argument by junior lawyers. Appellate lawyers representatives of the Ninth Circuit Judicial Conference plan to introduce a resolution next month that will “encourage judges and districts within the Ninth Circuit to adopt rules and orders which support the creation of opportunities for newer lawyers by rule and order.”[4]  The resolution can be found here.

This is an exciting time to be a junior lawyer. Hopefully other judges will soon join “the court[s] [that] believe[] it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young lawyers, to clients, and to the profession generally.”[5]

For detailed information about current judicial orders that promote the next generation of lawyers, stay tuned to this webpage, http://nextgenlawyers.com.

[1] Marc Galanter, The Vanishing Trial:  An Examination of Trials and Related Matters in Federal and State Courts, 1 J. of Empirical Legal Studies 459 (2004), http://marcgalanter.net/Documents/papers/thevanishingtrial.pdf.

[2] Marc Galanter and Angela Frozena, The Continuing Decline of Civil Trials in American Courts, Pound Civil Justice Institute 1,4 (2011),http://www.poundinstitute.org/sites/default/files/docs/2011%20judges%20forum/2011%20Forum%20Galanter-Frozena%20Paper.pdf (“Civil jury trial rates have now been below 1.0% since 2005, while bench trials dropped below 1.0% seven years earlier, in 1998.”).

[3] Next Generation Lawyers, http://nextgenlawyers.com (last visited June 27, 2016).

[4] 2016 Resolution, Encourage the Creation of Opportunities for Newer Lawyers by Rule and Order.

[5] Judge Gregg J. Costa, Court Practices and Procedures, United States District Court Southern District of Texas 1, 3 (2015), http://www.txs.uscourts.gov/sites/txs/files/costa_procedures.pdf; Judge Gray H. Miller, Court Procedures, United States District Court Southern District of Texas 1,7 (2015), http://www.txs.uscourts.gov/sites/txs/files/procedures%20with%20att%20forms.pdf.

Written by: Sara Townsend, June 30, 2016

Judge Lynn makes the following part of her standard patent scheduling order:

11. The Court is aware of a trend today in which fewer cases go to trial, and in which there are generally fewer speaking or “stand-up” opportunities in court, particularly for young lawyers (i.e., lawyers practicing for less than seven years). The Court strongly encourages litigants to be mindful of opportunities for young lawyers to conduct hearings before the Court, particularly for motions where the young lawyer drafted or contributed significantly to the underlying motion or response. In those instances where the Court is inclined to rule on the papers, a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing. The Court understands that there may be circumstances where having a young lawyer handle a hearing might not be appropriate – such as where no young lawyers were involved in drafting the motion, or where the motion might be dispositive in a “bet-the-company” type case. Even so, the Court believes it is crucial to provide substantive speaking opportunities to young lawyers, and that the benefits of doing so will accrue to young lawyers, to clients, and to the profession generally. Thus, the Court encourages all lawyers practicing before it to keep this goal in mind.

Last Wednesday, in the GSI Tech., Inc. v. Untied Memories, Inc. case, No. 5:13-cv-01081, Judge Paul Grewal of the Northern District of California noted to the parties before him that the need for trial counsel to provide opportunities for junior lawyers, stating “who will try the technology cases of the future, when so few opportunities to develop courtroom skills appear.”  In response to the Judge encouraging the parties to allow associates to present argument on at least two of the six post-trial motions, the parties decided instead to stipulate to take all motions off calendar and submit them without any hearing. On Friday, Judge Grewal responded by issuing the following order:

The day before last, I expressed my concerns about the lack of courtroom opportunities for law firm associates in intellectual property cases like this one.1 Recognizing the court’s own important role in encouraging clients and partners to give up the podium once in a while, I asked that each party give associates the chance to argue just two of six motions set for hearing on Monday.2

This morning, the parties and their counsel responded. But rather than confirm their commitment to this exercise, the parties jointly stipulated simply to take all motions off calendar and submit them without any hearing.3 No explanation was given; perhaps associate preparation and travel costs were the issue. In any event, once again, another big intellectual property case will come and go, and the associates who toil on it will largely do so without ever being heard.

I appreciate that my order acknowledged the possibility that the parties would decline this opportunity and simply submit their motions on the papers.4 But I would be remiss if I did not observe the irony of another missed opportunity to invest in our profession’s future when two of the motions originally noticed for hearing seek massive fees and costs.5 To be clear, GSI asks for $6,810,686.69 in attorney’s fees, $1,828,553.07 in non-taxable costs6 and $337,300.86 in taxable costs,7 while UMI asks for $6,694,562 in attorney’s fees, $648,166 in expenses8 and $302,579.70 in taxable costs.9 That a few more dollars could not be spent is disappointing to me. My disappointment, however, is unlikely to compare to the disappointment of the associates, who were deprived yet again of an opportunity to argue in court.

Both of Judge Grewal’s orders are posted under the Judicial Orders Promoting Next Gen portion of this website.

Written by: Kathi Vidal, March 11, 2016