Last Week in Texas with Michael Smith | Episode 17

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Should patent owners be afraid of NDTX now that the patent pilot is over? And what can we learn from a preliminary injunction denial? Hint—a lot.


Episode Transcript

SPEAKERS

Wayne Stacy, Michael Smith

 

Wayne Stacy  00:00

Welcome, everyone to the Berkeley Center for Law and Technology’s Last Week in Texas podcast. I’m your host, Wayne Stacey. And we’re here once again with Michael Smith. Michael, thanks for joining us.

 

Michael Smith  00:12

Thanks for having me.

 

Wayne Stacy  00:14

Well, Michael, another another week and another set of interesting cases coming out of out of Texas.

 

Michael Smith  00:23

There sure were.

 

Wayne Stacy  00:25

Well, and some of these are beyond the normal, interesting cases. It shows a lot of a lot of behind the scenes maneuvering in courthouses. But before we get to the the fun things, let’s talk about patents scheduling and Marshall.

 

Michael Smith  00:40

Yeah, this is helpful to kind of put a stake in the ground because it’ll it’s relevant to some things we’ll be talking about later. Last week, we had our usual bimonthly patent scheduling conferences in Marshall affectionately referred to as the cattle call. And we all show up, go over there judge Gill strap goes through the cases, sees who consents to a magistrate judge and who doesn’t and then gives the cases are Markman and jury trial settings. And the significant thing about this is Judge Gilstrap for the last 10 years, he always sets cases for trial at about the same time, 14 months from the scheduling conference, give or take 30 days, same thing here 13 To 15 months, the markets are a little bit later there, they were running seven to nine months from the scheduling conference, they’re usually six to eight. But that just means that it affects the timing aftermarket ones just a few weeks. But anyway, it’s always good to see people Judge Gilstrap will announce if there are any changes in procedures, and there weren’t at this case. So we had about 14 cases heard one significant change over the years is of those 14 cases, only two had other cases consolidated into them. We used to have an average of six to 10 cases, consolidated with one lead cases, we’re now down to like, I think 1.1 cases, because we only had to one had another case consolidated with it, another had three cases consolidated with it. So we don’t see as many cases where a plaintiff sues multiple defendants. Some of that is certainly attributable to TC heartland, a plaintiff will file some cases in the Eastern District. They can’t get Vinu on other defendants. So they’ll file those in the western district or in Delaware, California somewhere.

 

Wayne Stacy  02:32

We also saw some some state motions that came out of martial that seemed to be

 

Michael Smith  02:38

if you want to dig a little deeper, seemed to have some some wonderful meaning behind them. Well, they did. There was a lot of interest in the state cases that we talked about in Waco last week. And it just so happened that when I was looking at cases out of Marshall, at the same time, I had four cases I could look at where Judge Gilstrap ruled on a motion to stay. And again, like snowflakes, every state was was different. In the vocal life case, the request was will judge give us a state because we’re doing venue discovery. And there’s another case up in front of the Federal Circuit involving the plaintiff a prior case. And the judge said, Well, under the facts of this case, venue, discovery is about to end. So I’m going to deny the motion at this time. But after I’ve ruled on the venue motion, if the appeal is still going, you’ve got leave to file it then so it now wasn’t the right time, but he was saying it might be later. So you got a denial without without prejudice. In the second case, Varta. The issue was whether the court was going to stay the case based on a bending a pending inter parties review. Well, this was a different situation. A lot of times IPR stay requests are a little more straightforward. But in this case, Judge Gilstrap noted the P tab had declined to institute review on to the six patents. It had already made other rulings allowing the plaintiff to amend and permitting subsequent claims on others. So he said these facts indicate that there had been no simplification and there wasn’t any simplification reasonably foreseeable. So this day was denied. So unusual facts on an IPR stay there.

 

Wayne Stacy  04:18

So Michael, I wanted to poke on that one just a little bit. This that language around no simplification, nor was any reasonably foreseeable. Is that going to be a standard that lawyers want to start, or maybe not a standard but phrasing and an idea that lawyers really want to work into stay briefing or opposition’s.

 

Michael Smith  04:38

Oh, I think I think on both sides, you’ve got to talk about simplification. You’ve got to as the plaintiff, you’ve got to take on simplification, and indicate for these reasons, it’s not likely to happen. They’re still going to be part of the case that goes forward no matter what. on the defense side. You want to argue that this case is an outlier, which I think it is the facts showed there was very little. I mean, these are all the bad facts you could have on the defense side, in that the P tab is declining to institute review, it had already done other things. You couldn’t point to that much simplification out in the future. Now, Judge Gilstrap is is kind of grinchy when it comes to assuming that there’s going to be simplification, but in this case, he had good reason to be. But But yeah, that’s that’s the central fight in every case, is it likely to be simplified? More than just well, we can just speculate that something might happen.

 

Wayne Stacy  05:38

Well, then the final one was an ex parte re exam.

 

Michael Smith  05:42

Oh yeah, yeah. … protection against what might happen in the future. And the other thing that Judge kind of took particular umbrage at was the plaintiff cited a couple of cases and said, Look, Judge, you’ve granted stays in this situation before. And Judge Gilstrap says, Yes, but that was right at the beginning of the pandemic, there were kind of other things going on then. And then there’s good language in the order where Judge Gilstrap says when he’s presented with a motion to stay, he looks at the practical realities and the particular circumstances of each case, he says, I have not adopted a bright line rule that is stay will be granted because a single examiner has initially rejected all the claims in ex parte re exam. And also in that case, the court indicated the party had kind of dragged its feet during the process. So again, you had some bad facts here. But the bottom line is it’s going to be harder to get a stay in an ex parte just because it’s a different animal. An IPR is a lot better vehicle to be latching on to when you’re trying to get a stay.

 

Wayne Stacy  07:03

Oh, and in this one, this one’s fantastic. For me, actually, you’d be surprised to know my my first publication was on stage for ex parte re exams back in the 90s. So you —

 

Michael Smith  07:18

tell you know, old we are that that that was the kind of stay we had to talk about? Well,

 

Wayne Stacy  07:25

even back then judges were skeptical of ex parte read exams in the timeline and weren’t granting stays. So it’s funny to see this many years later, people still trying it. But even out here in California, these judges are skeptical of ex parte re exams.

 

Michael Smith  07:41

Well in and I’ve seen cases where parties have gone through IPRS, then there’s an APR. I mean, they they try everything. And it’s just not a great tool when you’re trying to get a stay. But that’s but that was the third of the fourth of the four cases that I looked at. In the last case, blitz safe, and there’s been a series of blitz type cases, Judge Gilstrap declined to stay the case until he ruled on the defendants motion to dismiss for lack of personal jurisdiction. Sometimes you’ll see that a party files a motion dismiss as first day for 30 years, the Eastern District has explicitly said that doesn’t get you to stay, you’ve got to ask for it and show why you need it. The court carried the motion to dismiss and told the parties to engage in jurisdictional discovery. But he wasn’t willing to stay the case based on the arguments that were presented. He said there are substantial controverted questions regarding the merits of the motion dismiss. If you win, the motion to dismiss the case is over. But until you win it the case was going to go forward.

 

Wayne Stacy  08:47

In in all these cases is there is Judge Gilstrap really also warning parties that I’m still going to consider this. So don’t go wild on Discovery, thinking that you’ve somehow one in the case is going forward. Just be reasonable.

 

Michael Smith  09:04

Right. Right. You know, it’s he’s very clearly checking the oven on a couple of these cases and looking to see is it appropriate for a stay now? Not now. But it might be a little further along after I rule on the motion to dismiss after the jurisdictional discovery comes in? It might be appropriate for a stay at that point. So just because you don’t get it the first time doesn’t mean you’re going to get it later. But again, this gives us some very good insight into what is the courts thinking and what are the arguments that he’s expressly rejecting? I mean, I’m going to go back and read the NetScout case, when I’m looking at citing these two Ramet and ages cases. When somebody tells me when associate comes in says hey, look, I’ve found two cases where Judge Gilstrap says that if there’s been an initial rejection, he’s gonna stay the case. Well, no, he’s been very clear that is not what those cases mean. So usually I mean, every data point is valuable when you’re dealing with judges to see the same issues over and over.

 

Wayne Stacy  10:05

Well, and so we’re also seeing the the spread, or maybe I’m not sure it’s a spread or another judge adopting one of my favorite things and claim construction. And that’s preliminary constructions.

 

Michael Smith  10:18

Oh, yeah. Oh, yeah. This was great.

 

Wayne Stacy  10:20

I love preliminary constructions in then I, I also love to see lawyers that can’t stop talking. So they want to tell the judge that the judge did a great job adopting their proposed construction. I had a mentor that gave me the best advice ever. Sit down and shut up.

 

Michael Smith  10:41

That’s That’s funny. I saw that two weeks ago. It one of the pre trials to Judge Albright. Judge Albright was very patiently listening to a associate for one side, tell him how wrong he was on everything. And he kept explaining I’m sorry, this is actually what the law is. So I’m going to do and ruled against him. Well, then the other side stood up and started kind of complimenting the judge on Well, yeah. And he said, he said, Mr. Bun, so sit down, I just ruled in your favor. So I got a kick out of that. But no, you’re you’re right. Preliminary constructions are one of my favorite things. And and this was actually one of my cases. I wasn’t at the hearing, because I had to be at another hearing. But I got the email from the technical advisor at 730 in the morning, saying here are the courts preliminary claim constructions, and use language that that we all kind of recognize come from? I’ve heard a few times from another judge. So there’s going to be a little little ribbing, between the judges, I suspect on that, but basically, we’re giving you preliminary constructions. This is just to give you an idea where the court is let you focus your arguments. And what I heard back from the hearing, is that it absolutely did that the parties were able to focus on a limited number of constructions. That commonly happens in my cases, maybe I didn’t get the construction I wanted, but I can live with what the court did. So we’re just going to argue on a couple. It also gave the parties some specifics on how to submit things to the court and inside baseball, that’s useful to know what the court wants and when they want it. Now, the important question is his judgments and going to do this going forward? What he told the parties at the hearing is where he has time, he intends to do this going forward. And I think he will see with how much time I think this saved him by getting us out even a few hours early. It’s it’s a really, really good tool. If courts got the time to get these out early. I know it saves us a lot of time in front of Judge Payne, because we know where he is. And we can re calibrate our arguments to knowing how likely he is or isn’t to come off that construction. But I’m with you at this is a great order here.

 

Wayne Stacy  13:01

Well and I hope judges understand this actually saves the parties that the clients lots of money, because otherwise lawyers have to prepare for four or five different approaches, instead of one or two. It’s it’s good for me, it’s good for the idea of access to the courts.

 

Michael Smith  13:20

Well, and I have to throw my side of the bar under the bus here. But I’m a big fan of judges who do this. Earlier in the day of the hearing. I remember the first time I saw this was with Judge Paulson. And we told him we you know if you’ll give this to us, the day before we could redo things he said no, no, no, no, no. That’s why I don’t give it to you the day before, because you’ll redo everything and it will take just as long. It really does avoid a lot of work because when you get it at eight o’clock in the morning, typically our margins for Judge Painter at nine, we get this at eight, make the traditional run to the courthouse, grab them off the podium at eight o’clock. And you don’t have time to redo your argument. Just because you’ve got time to argue for everything you have to kind of look at, you know, I can live with this. I can live with this, I can live with this. It really does cut things down at a point in time where we can’t go back and and re prepare on points that we really don’t need to be repairing on but you know how we are. If there’s a rock to be overturned, and I’ve got time to overturn it. That’s what I’m going to do. So I really liked the timing of giving it to the lawyers earlier in the day. Because that really does give us an excuse like time limits it gives us an excuse to only fight the arguments that are worth fighting. Nobody tell every lawyer that in IP that I said that though.

 

Wayne Stacy  14:48

Well, talking about arguments that are worth fighting. Maybe the most infuriating case I have have discussed with you yet out of the Northern District of Texas as a sua sponte, a transfer from from Fort Worth, Dallas. While I’m, you know, I spent a lot of my life in Dallas, I love Dallas. I don’t know why anybody would wants to go to Fort Worth, for any reason. This case does not seem right to me

 

Michael Smith  15:19

that, you know, we talked last week about our maybe the week before about wire people, are people falling in the Northern District of Texas. Well, if you’re talking to a Dallas lawyer, and you want to explain, Well, here’s why you can’t have nice things. Here’s why you can’t have nice things. The defendant is located in the Fort Worth division of the Northern District of Texas and sua sponte. This judge transfers it to Dallas, because the defendant had facilities in Dallas and was likely to have more facilities in Dallas, and the plaintiff was closer to the courthouse in Dallas. And again, this was sua sponte. venue was proper venues not on a division wide basis venues not predicated on where the plaintiff is. And we talk every week about whether how important it is for the compliance with the legal standard. Is it clearly more convenient has the defendant shown it’s clearly more convenient. And here the plaintiff never got the opportunity to make this argument. We don’t even know if the defendant would have wanted to transfer to Dallas, away from their home forum. The judge just sent the case to Dallas. I mean, this is the second case I’ve seen in the last few weeks where I where I Northern District Judge has sua sponte transfer the case from Dallas to Fort Worth or Fort Worth to Dallas, because more of the parties were located in one division or the other. i i really appreciate the judges that I’m in front of that let the parties put the issues before the court and doesn’t resolve something that the parties haven’t identified. So this was a it’s a disturbing order. It’s a regrettable order. Because I really think the lawyers are the ones that need to be presenting issues to the court. The court doesn’t need to be go out and try to harvest issues off of the initial review of a complaint.

 

Wayne Stacy  17:11

Well, in the stunning piece about all this is these two courthouses are, what 35 miles apart?

 

Michael Smith  17:17

Oh, yeah. Oh, yeah, there’s not a decision that says that the Federal Circuit just a few weeks ago said the difference between Marshall and Dallas is not worth talking about. And the distance between Fort Worth and Dallas is not much more than taking the wrong exit. I’ve done that before leaving Fort Worth, and I took the wrong exit. And next thing I knew I was in Dallas. It’s it’s just bizarre, it’s a little surprising to me that the plaintiff filed in the in. For those that aren’t familiar with with Texas, there’s there’s been some unwillingness among parties to file in Fort Worth lately, lately being last 20 years. So it’s a little unusual that someone was filing in Fort Worth when they could have filed in Dallas. Before all we know they did this, because they were afraid of Dallas judge was going to send them to Fort Worth. So they may have been wanting to do what I do, which is when I know I’m going to end up in a forum, go ahead and file there and make it look like that’s where I wanted to be in the first place.

 

Wayne Stacy  18:16

Well, Michael, this just seems like one of those those cases patent lawyers talk about is proof that judges hate patent cases. And you need to go to the few judges that actually care about them.

 

Michael Smith  18:29

I would absolutely agree with that. I don’t want to be in front of a judge that doesn’t want to see me. And that that’s why it’s such a pleasure to be in front of judges whose eyes light up when the patent lawyers come into the courtroom because they enjoy what they’re about to hear and what they’re going to be asked to do. It’s just it’s just a pleasure to be in front of courts like that.

 

Wayne Stacy  18:51

Well, we’ve got a judge out here that I love that openly says he hates patent cases, but not as much as he hates patent lawyers. And then turns around and does an incredible job judging the case. So you give you the warning, I’m going to be grumpy about it, but then does does the job beautifully. So it’s you get the job done. You take a little beating in the meantime, but this seems like the worst of all worlds where nobody wants the job or the lawyers.

 

Michael Smith  19:23

It’s it’s it’s just a perplexing. It’s a perplexing case. And And it underscores why form selection matters. You really don’t want to have your case in front of a judge that not only doesn’t want your case, but a judge that thinks that they know more about your case than than you do.

 

Wayne Stacy  19:42

So, Michael, the next case that you brought up is preliminary injunction denial, and Judge Albrights court. That’s that’s rich and details itself, but I was concerned that people might take away the wrong lesson from it. So you want to walk us through that one.

 

Michael Smith  20:00

No, no, I agree this was a hearing that I had last Friday. It was one of those days when I get my hand cramps up because I’m writing notes so fast because so much useful stuff is coming out. The plaintiff had asked for a preliminary injunction, the judge denied the preliminary injunction. I’m not going to go into the background of that, because if we get an order, I can talk about it then. But the bottom line was as soon as the judge said, Okay, I’ve heard enough. I’m denying the motion for preliminary injunction, he turns to the plaintiff and says, Okay, how quickly can you be ready for trial? And the plaintiff is like, well, I guess whenever you sent me, and judge Albright said, Well, no, no, no, that’s not how it works. I can set you whenever I want. The question is, when can the parties be ready? And what he indicated was after, after I deny a request for preliminary injunction, I’m going to fast track the case. And and, and I want to get you to claim construction hearing Quicker, quicker. I want to get you an earlier trial setting. Can you be ready at the end of the year, and he started throwing around December in January, within I know, it wasn’t more than 90 seconds after we hung up on the call the law clerk had fired out dates for us to consider and work backwards from to work around people’s trial schedules, but essentially shaving six months off the the time to trial here. Now. Does this mean that if you ask for a preliminary injunction in judge Albrights court, and you lose that you’ll then get a quicker trial setting? And I bring it up that way? Because since the hearing, I’ve had people ask me that and the little the little figure in the red leotards on my left shoulder is going yet yeah. As for bloomberry junction to get a quicker trial setting? Well, you shouldn’t file a request for a preliminary injunction that you don’t think you’re entitled to. Just because you’re you’re wanting a quicker trial setting, that would be wrong. But knowing that the that the judge is interested in setting a trial setting that accommodates the needs of the cases. So in some cases, a quicker trial setting might be more of a need than later trial setting. You remember I said at the beginning of today’s podcast, Judge Gilstrap always sets it at approximately 14 months. Judge Albright likes to look at the facts of the case and decide is this one that needs to go faster? This one that needs to go later? The Federal Circuit has talked about that in some of the mandamus opinions read recently, does this plaintiff need a quicker trial setting. So what he was doing is saying based on what he had heard, he wanted to try and get the case going sooner rather than later. Now, you don’t ask her preliminary injunction thinking you’re going to get a quicker setting, you don’t want to destroy your credibility with the court by asking for something you’re not entitled to. But Judge Albright talked about some things that you might want to refer to if you want to try to argue at the scheduling stage for a quicker setting. For one thing, he mentioned that in 2021, he conducted 107, claim construction hearing smarten hearings. So he said you might be you might want to look at shortening the briefing on claim construction. Well, you don’t really need that third round of briefing, the parties were arguing over a term that they that they indicated was going to be pretty significant claim construction. And he pointed out I’ve actually already construed the term poll, and I kind of knew what a poll was before I construed. So he was trying to indicate you might can save some space there. He indicated again, remember, Judge All right, lets the parties modify all the intermediate dates essentially, will you don’t even file a motion. So he reminded people you can do that. He reminded people you’re going to have a technical magistrate judge after April 1. So different things that he talked about, that indicated how you might be able to shorten time and what arguments you might make for asking for a shorter time. He also told the parties that if he Fast Tracks a case like he did here, he’d be available for hearing if the parties needed one. And again, in recent months, it’s been pretty easy to get a hearing on a discovery motion with Judge Albright if you need it. But this was interesting. He told the parties be sure that you talk to the other side before you do that, because one thing he’s seen his party setting up a phone call a discovery call within and on the call, he finds out that they never talked to each other. So he reminded us you’ve got to do that. So lots and lots and lots of interesting things coming out of this particular hearing. And I haven’t even gone into the merits of the ruling that he made.

 

Wayne Stacy  24:52

Well, if we we look forward to one other other piece here, you know, people think just immediately think the Eastern District Western just check says plaintiffs always win, which we know that’s not true, but for some reason that that image sticks in people’s minds. But waco has proven to have a few bad bad weeks for plaintiffs.

 

Michael Smith  25:16

Oh, yeah. The the the last couple of weeks, I’ve had a lot of bad rulings for plaintiffs, which, again, once the docket matured, once you had state cases at every stage of the proceedings, was not really a surprise to any of us. But but we had another example of that this week. A claim construction order came out from or it was actually a summary claim construction order. It’s a chart that says plaintiff wanted this defendant wanted this, here’s what the court’s ruling is based on what happened at the hearing. And down buried in one of the terms judge Albright found one term which occurred in five claims indefinite, and the first claim that was indefinite was claim one. So again, we don’t have an opinion that or we don’t have a summary judgment, or we don’t have a dismissal to look at to see what the effect of that is. But you do lose on claim construction in front of this judge, I have lost on claim construction in front of this judge at the pre trial conference. So that is not an unusual ruling. It’s just a ruling that tends to not happen till a little later in the case. And now as we’re getting hundreds and hundreds and hundreds of cases later in the later in the process, you’re seeing more defense rulings.

 

Wayne Stacy  26:34

Well, that’s that’s a good thing for people to keep in mind, you know, this old view of plain ordinary meaning plain ordinary, meaning the district won’t construe. It’s just not accurate. And now we’re getting real, real evidence from Waco on that. So it’s time to update the old stories we tell ourselves.

 

Michael Smith  26:54

Absolutely. I was talking to someone recently about a filing decision about whether to file a case in judge all rights court or someplace else. And the advice that I gave them was not the conventional wisdom. If you’re if you think that filing in front of a certain judge is a slam dunk for a plaintiff, it’s not I’ve never been in front of a judge where that was that was the case. We’ve got another ruling from– Judge Albright makes venue rulings regularly there are several every week. But the one that I pulled out that I wanted to mention today was a particular interest because it’s an intra district transfer to the Austin division. And it’s an unusual situation back September of 2020. The party stipulated to transfer the case from Waco to Austin, which is not unusual. You see a lot of stipulations because candidly, I went to graduate school in Austin, I went to law school in Waco. I like both just fine, but Austin is a little bit more fun. So the parties stipulated and a couple of weeks later, the defendant files a motion transfer from Waco to Austin. But several months later, Judge Albright denies the motion without leave, because the Austin courthouse has shut down. So he says I understand you’ve stipulated to this. And we’ve got an unopposed motion transfer. But I’m not sure that I can try the case in Austin. So refile later on. So the defendant refills the motion in November of last year. So just a few weeks ago, the next day, he informs the parties that if the case is sent to Austin, it will no longer remain with me, it will go into the wheel for reassignment among the Austin judges. That is a recent development, that’s of great interest to a lot of practitioners. And the plaintiff immediately says, Wait a minute, my stipulation in my non opposition was based on that it was going to be the same judge now that I know that it’s not going to be the same judge, I’m going to oppose this defendant asked to strike that response, Judge Albright said, No, I’m going to consider the response. And I’m going to consider another Federal Circuit said you can’t consider facts after a case is filed. This is different. We have a pandemic, and we have a change of judicial officer, I’m going to let him make their arguments. But he grants the motion to transfer anyway. And he says you have appointed any facts that allow you to disavow your original position that Austin was more convenient than Waco, you originally stipulated and you originally didn’t oppose it. And the only factor that you’ve got now is that the judge is different. And that’s not that’s not enough. You’re pointing out that there’s a backlog of trial and lost in backlog of getting to trial in Austin. But the Federal Circuit has told me that I can’t let that factor alone outweigh all over fact, other factors. So he transfers the case to Austin, and I haven’t looked to see who it’s been reassigned to but it will be reassigned to a different judge. So that’s a major new consideration now for people filing in Waco. If you get a transfer to Austin, if the case in all likelihood won’t continue to be assigned to judge Albright, it’ll be reassigned to one of the two judges in Austin. So you have to consider that when you’re making your filing decisions.

 

Wayne Stacy  30:21

Well, the final case for this week is a really interesting order denying a motion to continue trial. I mean, this, this illustrates the the pressure that Judge Albright keeps on the parties to get a case trial.

 

Michael Smith  30:38

Right. And I think and he’s consistent with what we see out of judgment Zant and judge Gilstrap as well on this defendant Google was asking him to continue the January 31 trial setting by eight weeks citing the spread of the Omicron variant. They said that six of its nine witnesses wouldn’t be able to testify in person. Judge Albright denied the motion and gave us a couple of facts to look at. He said first of all, the witnesses can still testify remotely. Again, in judge all brides court witnesses can testify remotely. You’ve got monitors, everybody looks at it on the monitors. I’ve talked to judge Albright about that experience and asked him because he talks to juries After trials and asked him to jury say it was any different whether they’re watching a witness on a screen or live, he said they didn’t think it made a difference. That so what he’s been told by drawers is it does not make a difference. He also said you’re not giving me any evidence that the variance is going to die down in eight weeks. How do we know this is going to be bet better? How for that matter? How do we know that that you’re still going to have the same problem by July by January 31. Given the the trends of what’s happening with the variant, and then finally, he says the parties have already agreed to COVID protections. These agreements include a prohibition against using conditions against witnesses and specifically prevent the planet from using the video witness testimony against Google. So that mitigates the prejudice. Now, again, we don’t know which witnesses these are, we don’t know if these are the experts. And remember, Judge Gilstrap pushed off a trial because it involved an expert, he wouldn’t push off a trial that just involved a fact witness by the defendant that couldn’t get there. So we don’t know how this is actually going to shake out based on the order. But it’s useful to know, here are arguments that have been made. And here’s how judge Albright responded to them. My personal guess is that this is all going to be moot by January 31, that’s two weeks from now. And a lot of things are gonna change by that time, including the status of those six weaknesses.

 

Wayne Stacy  32:54

So Michael, it’s gonna be interesting to, to pull out the best practices. And as lawyers, we’ve we’ve had to learn how to do remote depositions over the last year and a half. They were always available. But how many remote depositions Did you ever take before? COVID?

 

Michael Smith  33:10

Yeah, exactly. I know.

 

Wayne Stacy  33:12

If I did, it was just a verify document or something that was irrelevant in terms of jury. But this idea of testifying remotely, again, has, we don’t have a lot of experience with it. So it’ll be great to see how this has worked and how it may be used post COVID. And in certain situations,

 

Michael Smith  33:33

it’s it’s very, I absolutely agree, it’s going to be interesting to see how this works. Judge Albright’s experience at trial has been good so far with it. Two weeks ago, I made a pre trial with him. And the defendant wants to let a remote lawyer make an argument. And the judge had to say, we can’t do that, because the connection wasn’t good enough. And they had just checked the connection right before we started the hearing. So you have glitches like that can affect things. And I personally am really interested. Well, I mean, we put video deposition testimony in front of jurors all the time. But that’s where it’s not that important of a witness or where we didn’t have a choice. If it’s going to be a crucial witness, you may have reason for wanting that person live, on the other hand, you with some of the witnesses I’ve had, it may be good that they’re remote. Maybe we could even put it on old CRT TV that’s in black and white. But it is facts specific, but I would be looking hard at the research from jury consultants on what difference does it make if someone testifies remotely because that that might inform how hard I want to fight to have that person there. Live, but this also reminded me of something I heard. People are now having to plan several weeks ahead in terms of your witnesses in it terms of your lawyers being extra careful to make sure that something doesn’t come up at a point in time where the witness can’t recover in time for trial. It’s I mean, we’re all it’s like, now I know what an NFL Coach felt like during the season in 2021. You never know when you’re going to lose one of your players and have to live without somebody for a couple of weeks. The problem is we don’t have 17 games. We have one weekend trial.

 

Wayne Stacy  35:27

Well it will be be interesting to say see if any of these these protocols can help streamline these cases with global companies and globally distributed witnesses in the future. So we’ll know more soon.

 

Michael Smith  35:41

Hopefully so.

 

Wayne Stacy  35:42

Michael, once again, thank you, and we’ll talk next week.

 

Michael Smith  35:46

Thank you. I look forward to it.