Last Week in Texas with Michael Smith | Episode 15

BCLT's Expert Series podcast logo

Judge Albright provides guidance for smooth patent trials and hints at distinctions in types of 101 motions.

Episode Transcript

Wayne Stacy 0:00
Welcome, everyone to the Berkeley Center for Law and Technology’s last week in Texas podcast. Happy New Year. This is our first last week in Texas for 2022. And we are back once again with Michael Smith. Michael, welcome and Happy New Year.

Michael Smith 0:18
Happy New Year. It’s good to be back, Wayne.

Wayne Stacy 0:20
Well, you started the year off in Waco already. So before we we take you there, though, we’re trying to go to the Eastern District and look at some of the rulings from the end of 2021. And then the fun things that are coming out so far this year.

Michael Smith 0:36
Yeah, it reminds me of what I heard someone say at a pre trial with Judge Albright in Waco yesterday, he came over and looked at me and said, You know, I feel like I’m being unfaithful to judge Gill strap being here. I said “I understand.” But so let’s start with the Eastern District. We had a few interesting cases recently there. Last year, there was a damages retrial in a trade secret misappropriation case in front of Judge Moisan up in Sherman. And that was a case they had been tried in front of Judge shell several years ago, went up to the appellate court, and they provided an advisory opinion, reverse did on some damages issues, having to do with disgorgement and send it back and said retry the damages side of it. It is not fun being on the defense side in a retrial on damages. And this is the final order that came out of that were judgments and entered findings and conclusions, which agreed with the jury’s advisory findings in that case, on some of these issues, they’re for the court, but the court can seat and advisory jury and that’s what he he chose to do. And he followed what the what the jury did in that case. So if you if you’ve got a case with trade, secret misappropriation, discouragement damages issues, it’s a good opinion to look to, to see what are the factors and how do you effectively present that at trial?

Wayne Stacy 2:03
I think this is your right, this is a unique case to see damages separated from all of the other mudslinging and irrelevant damages issues that go with underlying liability. So for pure, pure pure damages case, I don’t think you’ll find one much better than this.

Michael Smith 2:21
Oh, yeah. It’s it’s yeah, there was a desperate need for some mudslinging. In that case. It’s very difficult, because the thing that made it unusual was the prior jury had found intentional misappropriation. So you had the jury in this case, instructed that well, it’s either gross negligence, or willful, or malicious. So you already had baked into what the new jury got the the bad conduct that the prior jury had found. So that that made it a very interesting case. But anyway, that’s an interesting one to look at. Another thing we’re finding out a little bit more about these days is mediation and mediation in the age of COVID. Every mediation is like a snowflake, it’s different, who has to show up is different, how it’s handled is different. And we had a couple of orders come out on a case here that is interesting. The parties identified some issues before mediation, we’re kind of back to in person mediation. But what happened here is the two parties are over in different countries in Europe, and one of them ran into a travel restriction right before the mediation and said our guy needs to attend remotely. And the other party said, well, we want you to send some other people from the UK and judge Gill strap issued an opinion that said that, okay, the corporate rep can attend remotely. But given the practicalities between the party and its owner, that owner needs to send an authorized representative as well, because the allegations are that they’re the ones calling the shots, they need to send some. Now, keep in mind this mediation is after a jury trial. So judge Gill strap has already seen the interplay at trial with trial testimony from the owner from the party from so forth. So he understands the relationship. So he issues the order based on the practicalities between the two parties

Wayne Stacy 4:31
in these I mean, the practicalities did he make an official determination of what those are or just kind of allude to what the parties should should already be doing?

Michael Smith 4:41
He just made the reference to the practicalities. And the parties know what that means because they know what he’s referring to but the order doesn’t say it. But there’s another shoe that dropped a couple of weeks later because after that order came out. It turned out that the party was able To get an exemption to allow their representative to come to the United States to attend mediation, and they said, well, in light of this judge now, can our owner not have to send someone and that was disputed. And Judge Giltrap issued a second order that said, Okay, you’ll attend trial in person. And based on what you’re telling me, and based on the authorizations that have been provided, I’m now going to hold that the representative that the owner doesn’t need to attend, as well. So So again, it, it’s a snowflake that keeps changing because as facts change, you can go back to the court and say, Okay, in this situation, we think this person needs to come, but this person doesn’t need to, and you get two rulings, in this case out of the court based on those changing circumstances. So with respect to mediations, I think you need to be aware that there’s no harm in going to the court and saying, Here’s kind of lineup, the lineup that we think makes sense. And a lot of times you work that out with the other side ahead of time, it turns out,

Wayne Stacy 6:05
it’s a bad omen when you have to go through multiple rounds of motion practice to get the right people to a mediation.

Michael Smith 6:12
Well, it is it’s unfortunate. But I think these orders give kind of an example of here some of the, the factors that may come into play.

Wayne Stacy 6:21
So Mike, one of my favorite mediations, up in Minnesota, where everything’s done by the magistrate judge, and they brought in their order put in, you have to bring somebody that has the power to settle, wouldn’t entertain any disputes about that. But he did say that. If I don’t like who’s here, I’m going to go change into my robe. And we’ll have a quick fact finding. And then there’ll be a contempt finding for you failing to bring that person I ordered you to bring, and then we’ll go back and mediate when you get the right people here. You know, we just if there was any doubt, we just brought extra people it was easier to pay for the plane fare.

Michael Smith 7:00
Wayne, that is not a hypothetical. I had exactly that happened in Plano with Magistrate Judge Bush, where he came in on his robe in the courtroom, and then adjourned us to separate sessions. And then when he decided that we had not brought the right person, he said, Aha, see all back in the courtroom, five minutes goes back in sanctions us. And what was funny about it was the lawyer on the other side was my, he wasn’t my partner at that time yet, Clyde siebman. But Clyde jumps over the rail and grabs his co counsel, when the judge looked at him and said, Okay, what do you want for a sanction, Clyde grabs his person and tells him just ask for the plane fare, just ask for the plane. Because he realized we didn’t want to blow things up over this. But I’ve been I love telling the story about how judge Bush sanctioned us at a mediation in his courtroom. It does kind of help get the right people there, though.

Wayne Stacy 7:55
Well, it’s it’s a great point that the judges recognize that mediations are are worthless if you don’t have the right people there to hear the mediators story and hear the mediator put pressure on people so

Michael Smith 8:09
Well, and in COVID, I recall when I was out at when I saw you at the Berkeley Stanford event. In December, I talked to several mediators about what effect COVID was having on mediation, all these remote mediators, and some of them said it worked better remotely. Others said it didn’t. But But I was very surprised to hear some say what my experience has been, which is that I would have assumed that if you don’t have people in the room, it’s just not going to work, but that actually hasn’t been people’s experience. We’ve had a lot of good mediations remote over the last couple of years. And whether they were effective or not, didn’t seem to be driven by whether it was remote o r not. That surprised me very much.

Wayne Stacy 8:59
Well, if we stay in the Eastern District, there was a protective order denial. That was pretty interesting.

Michael Smith 9:06
Well, there was this was a case where the plaintiff had several cases involving multiple defendants, including the defendants at issue here. And the plaintiff had tried serving the overseas defendant several different ways. One of the ways had stuck in one of the other cases. But these defendants in a different case said well, we’ll wait let’s not go forward with Discovery until we’re served pursuant to what was worked out in the other case, and judge Gill strap denied the motion for two reasons. First of all, he noted that the defendants had agreed that we’ll go forward with a case after it’s after the service issues are resolved in another case. And secondly, there has been an eastern district rule for 30 years that the pendency of a motion to dismiss doesn’t stop discovery from going forward, absent court order. So he said based on those two things, Discovery’s going to go forward. We’re not going to hold things up based on a service of process issue under the facts of the case. So that’s something that if you’re representing a defendant that you don’t, that you’ve got a service fight over, you might want to look at that before you start arguing about engaging in initial discovery.

Wayne Stacy 10:24
Well, as we move through, it looks like the next set of interesting cases are in the Western District. And one of the more interesting one here is the fresh hub sanctions order.

Michael Smith 10:35
Well, it was and this order got a lot of, or this ruling got a lot of national attention back when the hearing occurred on it. What happened here was the plaintiff lost a trial against Amazon and judge all brides court. in Waco. They found the jury found that the claims were valid, but none were infringed. So the plaintiff files a motion for judgment. As matter of law. Judge Albright resolves those motions in an order and gets to this issue, where the plaintiff is saying, we need a new trial. Because the reason the jury did what they did is because Amazon was presenting stereotypes of greedy Jewish executives at an Israeli company, the plaintiff was an Israeli company. And and that was their theme at trial. Specifically, they said they that the defendant referred to fresh Arab Israeli company, it emphasized irrelevant facts about its lack of profitability, and made explicit reference to Israeli shekels, as opposed to dollars. Judge Albright was highly, highly offended by this. And and it wasn’t just he said, first of all, what you’re saying happened to trial was not how it happened. The defendant was responding to specific facts. And the reason why the reference was referred to shekels was to make clear to the jury the difference whether calculations that were being presented by experts were in dollar numbers were in shekel members. More importantly, and here we get into the procedural side of it. The court said you didn’t object at trial, you make these these inflammatory accusations in emotion for new trial. But you’re now saying that throughout trial, defendants blew the Jewish stereotype dog whistle at every opportunity to unfairly bias the jury. But there was never an objection during trial. Now. We all know you can’t raise misconduct objections for the first time in a motion to new trial. But I think the thing that the plaintiff didn’t see coming here was that the judge was going to take it personally, that you claimed that this was happening throughout the trial, because he says if that was the case, then I was allowing this throughout the trial. And he said, I didn’t allow this because there was never any racist or anti semitic comments. He said, This is an attack on the integrity of the court, its attack on the reputation of defendants counsel. I mean, the defendants counsel that was being attacked was herself Jewish. So very offensive accusations here. So the judge concluded, you’ve you’ve breached your your duty to the court. He cited a California federal judge’s order just a few months earlier, saying that you need to take into account the improper conduct of these lawyers. So we required everybody to who signed fresh ABS motion for new trial to attend CLE on on et hics. As a result, very, very strong language from the on court this

Wayne Stacy 13:55
One of the things I point out, is I look at the opinion that struck me is the judge gave gave a full hearing on the matter. And we look into the allegations took it seriously and went through them one by one, to identify whether why those statements were made. So this wasn’t just a knee jerk reaction by the court to being called out this seems to be a really, really well thought out opinion. Based on the objections the other side raised that not a trial but in their in their briefing.

Michael Smith 14:30
Oh, it was it was very detailed. You you saw in the legal media, what he said at the hearing, but in the order he goes through, here’s what the actual statements were. Here’s the objections that were not made here. Here’s the context of everything. I mean, I really appreciate the court, protecting the reputations of the lawyers that were being accused in this way and pointing out at every step, how this claim is improper. It’s factually unsupported. It wasn’t objected to trial and error in it. It’s a good lesson, I think in, okay, you lost a trial, you’re not happy lost a trial. But you can actually make it worse. Now, I don’t know, I have not seen a 25 order come out of this, I was a little surprised that there were not monetary sanctions. But it’s possible that those may come up in the context of a 285. Because these are pretty exceptional allegations, given the lack of factual support. So we may not have seen the final order on this subject.

Wayne Stacy 15:36
Well, the other thing I took away from this is that it’s a strong warning to anybody that’s tempted to use any kind of racist conduct, the courts going to look at every statement one by one, to determine whether you shouldn’t be sanctioned. So I look at it from the other side, it’s, it’s just a really strong warning, don’t if you if you

Michael Smith 15:59
think that is happening at trial, and there and I’ve seen other cases where there have been allegations that this happened at trial and the end, the court agreed, if you see it happening in trial, you can’t wait till after trial to raise it, you have to raise it at trial. And and look for the judges assistants there, you can’t wait till after trial, and then throw it in. And as maybe a Hail Mary hoping that you’ll get a new trial out of it, because they absolutely did not get a new trial out of it. And a judge Albright added his voice to the Northern District of California judge that pointed out the lawyers by name and and and said that what they did was improper.

Wayne Stacy 16:42
So Michael, a question for you. If if you’re sitting there and trial, and you think a statement like that has been made by the other side? What’s the right way to get that in front of the the judge? Or at least in front of judge? All right. How do you raise an objection, Jim,

Michael Smith 16:56
the base the base? Well, what I’m going to say is based on what I heard him say yesterday, I think what he would want you to do is ask to approach the bench. And then make your record up there. Say, for example, the other side makes a reference to counsel. The other side made a reference go up there and say, here’s the statement that was made. I think the inference they’re trying to get before the jury is an improper one. That it’s it’s, it’s it’s asking the jury to indulge a bias against this party based on race based on religion based on whatever. And I think it’s inappropriate. And I think counsel needs to be cautioned. And then to the extent that it was something that that might be appropriate to provide a instruction to the jury at that point. You might, you might do it there. The couple of times I’ve seen it happen, or I have seen the court think that it may be happening, the court got to it before the party could even object. So so it isn’t something where I’ve actually actually had to think, Okay, I need to go up and say they’re there. They’re waiving of a religious bias flag here, the courts. I mean, I know I’ve had a couple of hearings in martial, where courts have gone out of their way to point out that I know, essentially, I know your jury consultant might have indicated this is a fertile ground to kind of keep seeding in the jury’s mind. This theme, this is not going to happen in this courtroom during this trial, you can mention where a party is from in passing, if it’s relevant to something you can mention it. But But met put down a very clear marker at the pre trial conference that I’m watching. And if you bring up that this witness is from x country, and it’s not relevant to something I’m going to call you down in front of the jury.

Wayne Stacy 18:58
Moving on to more Western District of Texas, we had a rare border on a 101.

Michael Smith 19:06
Well, it actually they’re not getting not that rare anymore, because we’ve actually got to to go over judge Albright and to provide a little context prior to these orders, Judge Albright had denied 101 motions, I think 14 times half half of the time on procedural grounds without prejudice saying bring it up later. And then the other half on on the merits. What we saw in the first order was at the pre trial conference, the judge granted a 101 motion and dismiss the case based on his grant of the 101 at the pre trial. And this was the first week of December that he granted that he said that the claims were directed to an abstract idea under step one and under Step two, that they didn’t include an inventive concept. He also looked at what Are there disputes of material fact that precluded summary judgment and said in that case, there were not. Now again, that was the first time we’ve seen that. It was a couple of weeks before we got the order on it. But this order is a very, very useful one, to see how he analyzes one on one issues, and this was in the USC versus Facebook case.

Wayne Stacy 20:23
Well, Michael, I mean, you mentioned that I’d still say that it’s rare, but you’ve got to So how do these lineup?

Michael Smith 20:30
Well, the second one came out? It’s a little bit different, but the the, the Court granted a 12 B six motion, and let me let me back up. The first case, was a summary judgment. The defendant didn’t raise the one on one issue until summary judgment two months before trial, the second case is different. The defendant in that case, raise the 101 and a 12 B six motion at the beginning of the case, when Judge Albright ruled on that 12 B six after the Markman hearing, in fact that the several months after the Markman hearing, he said, Okay, this motion should be granted, because while it’s very difficult to get a affirmative ruling under the Federal Circuit’s jurisprudence under ALIS, the defendant got there in this case. Now, what’s useful about this case, is that he goes through the Federal Circuit cases. And he says it’s very difficult to figure this out, because I read the Federal Circuit’s cases as Kant contradicting each other as far as whether something is or is not patentable subject matter. But he went into a lot of detail on going with these cases, because I think they’re closer to the situation here. And I believe that this is a situation where it’s unpatentable subject matter. So he grants the 12 B six motion. Now, that’s the good news for grants the 12 B six motion, and he dismisses the case. That’s a kind of an unusual outcome. But remember, this is a 12 B six motion, he cites some recent decision by Judge Gill strap that points out, this is not a summary judgment. It’s a pleadings issue. And what what Judge Albright decided was that the pleadings did not make clear that the claim was patentable subject matter. So he dismissed the case. And what you’d normally see in this case is a grant of the motion with leaved replete in a couple of weeks. He didn’t do that he simply dismissed the case. And again, we’re kind of late in the case here. So the plaintiff is dismissed without prejudice. It could refile the case and replete and try to get around it. What we don’t yet know is whether they’re going to try to so it’s a 101 grant. But it’s very different from the first one, it’s in a different procedural context. It resulted in a different ruling. And we’ll just have to see if this act is actually a different substantive animal.

Wayne Stacy 23:12
So So Michael, I mean, in a lot of courts 12, B and 12. C motions became the the flavor of the day for challenging 101. And were almost treated as dispositive motions. Is that what we’re seeing happening in Texas? Or is this something different?

Michael Smith 23:32
Well, I think I would have thought that I, frankly, had thought that the three were pretty much interchangeable. And this order tells me that if I do it as a 12, B six, I’m kind of building in a backdoor for the plaintiff to be able to replete. And maybe that’s not what I want to do so so maybe now I may start agreeing with some of my co counsel that say, I don’t want to raise it as a 12 B six, I want to raise it as a 12. C. I know why it doesn’t get filed that way in martial because judge Gill strap has some different requirements on bringing it bringing one a one motions up before you get to the claim construction stage. He has unpatentable subject matter disclosure requirements. So a lot of defendants will deliberately wait until a little bit later in the in the case to bring it up. And now I kind of understand why that might be a better decision. When you when you get a one on one ruling. You don’t want it to be. Well, now the plaintiff can see if they can replete around this, you want it to be their best shot and they either get there they don’t.

Wayne Stacy 24:45
Well, then we’re beginning to see more. More procedural motions coming from Judge Albright just kind of the timing of where the cases are stacking up. So you got this really in 26. You’ve got some interesting discovery motions that we’re getting new information Out of the we do.

Michael Smith 25:01
Judge Albright has had some new procedures in recent months that allow a more fulsome briefing, it’s a letter briefing procedure. But you put in up to 500 words each side about a discovery fight, you then have a phone hearing with him. And then the the parties get together, and they draft an order reflecting what the judges rulings were, and submit that for the for the court to review. The reason I was interested in this order in the Monterey case was for a couple of reasons. First of all, the plaintiff was asking for additional venue discovery, they were asking for more information on the products and more information on the employees and, and more on the on on things that would make sense that you’d want to get into in the venue context. And Judge Albright denied that. Couple of things that are important about that. What we’ve all heard judge Albright say in recent months, when you get on the phone with him on a on a venue fight, is the plaintiff will ask for a, b and c. And he will often tell him now Well, I can understand why you would want that. But looking at the recent Federal Circuit cases, they tell me that those facts couldn’t support venue even if you got them. So I don’t think you need discovery on it. So while I don’t know exactly what the discovery requests were here, I don’t think this subject matter is something that Judge Albright wouldn’t allow discovery into, I think that probably this falls into the scope of the plaintiff was asking for detail, or was asking for additional information that compared when you lay it up against recent Federal Circuit cases, that’s not going to help you get over the hump. So those got denied. There was also a request for some additional technical information that he also denied. To me this order is helpful, because number one, it tells you that not all discovery in the venue context is going to be granted. And number two, it’s an example of a pretty well written order reflecting rulings that I’m going to be using as kind of a template after I have a hearing. And we’re arguing over what the proposed order should look like.

Wayne Stacy 27:12
Well, the last piece for today is the pretrial conference. So I understand you spent a better part of a day at a pretrial conference over in Waco. I did.

Michael Smith 27:23
I did. In fact, I’m speaking to you in a waco hotel room right now. It was good being back in the courtroom with the exception of this time of the year. It’s very cold in judge it’s courtroom. And fortunately, I remembered that from 30 years ago when I was a intern in that court in law school. So I brought a parka with me and wore it in the gallery, which is that’s the Morgan Chu look where a park and the courtroom. But I had a long day with Judge Albright and I thought I could kind of do a letterman presentation the top five things that Judge Albright tells you at scheduling conferences that might help you when you’re presenting a case in this court.

Wayne Stacy 28:06
Okay, well, why don’t you kick off.

Michael Smith 28:08
Number five, Judge Albright own experts at trial. Judge Albright stopped ruling on motions for a few minutes to explain his practice on experts at trial. He told the lawyers that if there’s an objection at trial that an expert is testifying outside their report, he expect that the examining lawyers outline will have a note of where in the report the matter that’s being testified to is contained. He said if you’ve got that, that tends to kind of stop there being a second objection to it. But it also makes things go much more quickly. I know I’ve heard judge Gill strap say that’s just a impossible objection to to rule on without a lot of disruption to the process. Now, but but there’s a caveat to that. He said, The problem is that on cross, the expert may have to get into some unexpected areas. So when you get to redirect, you may need to ask your expert some questions that weren’t in their report any any said I am more flexible at that stage of the examination. That’s very good to know. It’s also very good advice and something I tell every lawyer I work with annotate your outline with every paragraph so that when they say Judge that’s on his report, you can say it’s a paragraph 114 on page 47. I even have experts that will put that information in a footer on the bottom of the slide that they’re testifying about. Because I’ve told them, I have to have that for every word that comes out of your mouth. I’ve got to be able to tell the judge. Well, it’s useful to know that Judge Albright says that too.

Wayne Stacy 29:46
Well, it’s also a good warning about cross examination on an expert keep it tight. Don’t let them as George Chandler used to say back up the truck.

Michael Smith 29:57
That’s it. That’s it. You can I Remember in trials of Judge Ward, you would see people go into something on cross, and then try to complain on redirect, oh, Judge that’s not his report say, well, it wasn’t. But you just crossed him on it. So now it’s coming in. Number four, Judge Albright on motions and limiting two things on this. What he’s told us previously, is that most of his motions and limiting were just, essentially, almost everything’s going to be granted initially. And don’t get excited. That just means don’t go into it until you approach if it’s something where he’s he’s, it’s a tentative ruling, it’s not the final say, unless he tells you it is. And he said, if it’s, if it’s like a car wreck case, and the motion limiting is don’t let him go into insurance coverage. Well, when I tell you that’s not coming in, that’s not going to come in. But on other things, it’s generally just I’m trying to keep things from coming up until it’s at trial, and I have a chance to look at it. But the other thing he told us that was interesting is he said during trial, don’t stand up an object and say that the opposing party is violating motion and limiting number 713. That was his number because he thinks we ever do it on motions eliminate, don’t stand up and say they’re violating 713. Because he said, I will not recognize the numbers of the motions eliminate and trial, I promise you that. Instead, just say, Your Honor, may we approach and go up and handle it at the bench? Well, that’s useful to know because some judges have a different preference. So it’s useful to know, the judge Albright isn’t going to get mad at me because I stand up and say, Your Honor, may we approach that would rather me do that and stand up and say, Judge, this is a violation, eliminate number 714.

Wayne Stacy 31:44
And that’s, that’s incredibly good local knowledge. We tried one out here in California, where the judge forbid anybody from approaching the bench. And the objection was the number. And exact there was a list at the bench. And the judge would do his conversion chart and tell you the outcome.

Michael Smith 32:06
that’s that’s exactly right. Judges do it differently. So that was very useful to know. Number three is witness disputes. Everything you You thought you knew, but had forgotten about 36. opponents. The issue that came up was a party was switching out who its corporate representative was going to be at trial and the other side was concerned that they were trying to get away from bad statements that the the 30 B six says designees had made during their depositions. So judge Albright stopped the parties and kind of explained here’s, here’s how it’s going to work. The you put a person up, that’s just a person, it’s they work for the company, and they can answer whatever questions. Now, if they say something that’s different from what a prior court representative said during trial, you can impeach them with a prior testimony, or you can approach me and ask to strike what they said, because it’s inconsistent with the prior testimony. So you’ve got a couple of options there. And and the party then said, Oh, okay, well, that well, that’s helpful. But what about corporate representatives that they wouldn’t answer questions in the 30? B, six, they objected, based on some ground, and then they show up and they start answering them at trial without us knowing what those answers were going to be. And he said, Okay, if that happens, if a witness didn’t answer the question, the deposition setting aside and instruction, not the answer during scope, dealing with scope, which is something different, then he wouldn’t permit the witness to answer the question at trial. Okay, so that’s, that’s three arrows that you’ve got in your quiver. Now, if a party comes up with a representative who starts saying something that either wasn’t answered in a 30, B six deposition or the the, the opponent said something inconsistent, so I thought that was that was useful instruction. Number two, is the pre trial order. This usually doesn’t come up in the Eastern District, but with Judge Gill strap because you’ve got tight time limits at trial. But but I’ve have seen the question asked before, the defendant objected that the plaintiff had said that in our rebuttal case, that’s not going to be limited to invalidity, we might go into infringement and damages as well. And the defendant when a judge Albright say you can’t do that, your rebuttal case is limited to invalidity. And Judge Albright had an answer for this. He said. The plaintiffs rebuttal case is everything. It’s not limited to invalidity. I’ve talked to lots of judges and without exception, they all say they do it this way. The plaintiff can go into anything in their rebuttal case. And the defendant said, well, then can I get a rebuttal, at least on invalidity after the plaintiff’s rebuttal, and judge Albright said no, but his eyes got a little bigger. So two things I took from that, number one, this doesn’t come up in Marshall for a couple of reasons. Number one, you just haven’t got time to restart infringement and damages in your rebuttal case, as a plaintiff, number two, because the only people that would be testifying would be experts anyway. And everything was in their report. You can’t claim something was surprised you already had an opportunity to bring it up. So you don’t you back the dump truck up. On your case in chief, you don’t leave things for rebuttal. Now. Yes, if something unexpected came up, you could do it. But generally, you’ve got so little time, it just doesn’t come up. Where you don’t really have a hard stop on your time. I can see where that would be a little bit more of an issue. And again, I’ll judge all right. Didn’t say if you ask me during trial, I mean, I’ll bet you if that defendant comes up during trial, and says, Okay, they’ve put on some stuff on invalidity, we’d like to have our expert get back up and respond to a couple of things. If it’s going to be 10 or 15 minutes, they probably are going to get leave for it. But anyway, just just an indication, here’s what Judge allrights rule is on that. And here’s probably how you you can address that at trial.

Wayne Stacy 36:34
That is a great point. That’s, there’s a big difference between asking for Can I have a rebuttal case? And can I have 10 minutes to make two points?

Michael Smith 36:43
Right? Right. We rarely run into a situation where people actually asking for more time on the backend. But if but I’ve seen, I haven’t seen anybody asked for it and not get it if you need it to wrap things up to make sure that the jury has everything that they need, I think I think you’ll get some leniency from a lot of judges. And just because judge Albright didn’t bring that up yesterday doesn’t mean that he won’t do it if he’s asked at trial. And the last thing you might hear judge Albright say is that he has the best job in the world. He says that at a lot of conferences, and it’s simply because judge Albright is one of those judges that likes lawyers. He enjoyed doing this as a lawyer. And there is nothing he likes better than to sit there with a smile on his face as good lawyers are going after it in a patent case, he really really appreciates the the expertise and the art of what happens in his courtroom. And he he doesn’t hesitate to tell us about that every day. So that that’s something that I think you’ll hear at most pretrial conferences with him in a patent case he just really likes likes the job of helping Shepherd these things through

Wayne Stacy 38:02
well, and as those that have practiced nationally know, there are a lot of federal judges that feel the exact opposite. So it’s nice to be loved, at least in one place.

Michael Smith 38:14
Yes, exactly.

Wayne Stacy 38:17
Wonderful. Well, Michael, once again, thank you. Enjoy your your time in Waco and your trial next week.

Michael Smith 38:26
We’ll we’ll have some fun with it. Have a good week.