Last Week in Texas with Michael Smith | Episode 23

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Two JMOLs give us a good lesson on strategy and picking your battles. And Judge Gilstrap gives us great guidance on exceptional-case motions.


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, it is March 30. And we’re here again with Michael Smith. No Baylor basketball jokes this week, Michael. So we think that that would be good. Well, thanks. Thanks for coming back after my unnecessary shots last week. Well, Michael, I’d love to start this week with a case I think that people would look at and kind of kind of laugh a little bit. But there’s a lot more to it. And there was a jury award and Marshall, that might be the lowest Jury Award in Texas and a patent case, a whopping $84,000, which is roughly one trial day for a patent team. So what what’s, what can we look at this case and learn? Well,

 

Michael Smith  00:52

it was an interesting case, I happened to be in the courtroom while the jury was deliberating and sending out notes. And I looked over at the plaintiffs table, and there were at least 10 lawyers there. So I don’t know what was going on there. Other than this, it’s a competitor case. And when it’s a competitor case, you don’t it’s not necessarily about the money damages at the trial. It’s it’s it’s about being able to cut the defendant off from continuing to sell a product that you think is infringing your patents. So, again, I am not focusing on the amount that the jury awarded, I’m focusing on what was being sought by the plaintiff. In that case, competitor cases are getting to be the standard. I’ve had four patent trials in the last year and Marshall would judge Gilstrap, all four were competitor cases, all four were a larger competitor in a field suing a smaller competitor in a field for patent infringement. And you had similar themes in all of the cases. So we’re seeing a lot of that. Coincidentally, the plaintiff’s lawyer in that case was my co counsel on the defense side in February, so I need to call him back and find out what happened on that case. One fun thing that happened while we were sitting there waiting to start our hearing is that the jury sent out a note saying, please send back the exhibit with the defendant sales in such and such time period so that we can calculate damages. I tried not to look at the defense table, then because I know how I feel when when a note comes like that. And you’re on the defense side.

 

Wayne Stacy  02:28

Yeah, there’s there’s no, no positive message in that note. Oh, no. Well, well, Michael, I think that it’s an interesting point. The stereotype of the Eastern District in the Western District of Texas, is that the only thing that’s happening there are in PE cases, and if you use a little harsher language, you know, like some folks do, that it’s just those are the two trial courts of the United States patent cases. You’re suggesting otherwise?

 

Michael Smith  02:57

Well, the cases that go to trial? Yes, we had a similar case to this that went to trial a few months ago in Waco, where again, the amount that the jury awarded was bizarrely low. But when you go back and you find out what they were fighting over, it was a competitor case. I mean, going back to 1994, the first patent trial I, I couldn’t I couldn’t work on it in martial because I’d been a law clerk when it was being worked up. First patent trial. And martial was a competitor case, where the plaintiff only got a verdict for like, $15,000 or something. But that wasn’t the point. The point was, she needed to get the defendants infringing product off the market. And she couldn’t do that unless she got a verdict, and then she could get an injunction. So there are a lot of competitor cases out there. And interestingly, it’s not smaller competitors, suing larger ones. I’m sure that’s happening. But coincidentally, every one that I’ve been involved in over the last year or two have been larger competitors using the patent system to try to protect their advantage in the marketplace, with their intellectual property, or to try to get someone else out by simply putting a sign up that says, Oh, well, we’ve got these patents. And then the the the court and the jury has to decide whether the patents are valid and whether they’re actually infringed. And then do you get an injunction if you’re successful at trial?

 

Wayne Stacy  04:22

Well, continuing our focus on the Eastern District, there were two J malls that came out last week and the first one a lengthy heavy read was The the suitcase and I think it was a 54 or five page opinion. Maybe the most creative briefing that I have seen defendant putting in for Jamal and I don’t necessarily mean creative in a good way.

 

Michael Smith  04:53

Well, the the thing about a J mole is it’s it’s always wear required to put every argument we might possibly make in your J mol during trial, then you have to raise it again in the 50 V motion after trial to be able to raise it on, on appeal. And we make fun of some of the arguments that people make in J malls. But candidly, how do you know what the Federal Circuit might pick up on later? And look at not having seen the trial not having the experience of seeing what what happened? And what went on at trial? What are they going to pick up on? So in this case, you have the defendant filing a lot of really kind of out their arguments having to do with standing, which products damages awards, really, some really odd arguments there, including a request that the judge remitted a request to reduce the German damages award from $825,000 to $81. I’ll say that, again, $81. It’s creative. But that bought them a new trial on damages. And I just got through with a new trial on damages, and those don’t really go that well. So I don’t know. I don’t know the backstory behind this. But I do wish we could be a little more careful with the arguments that we make in J miles. Because this looks like one where you really kind of may have damaged your credibility with some of the things you were asking for.

 

Wayne Stacy  06:33

That’s a That’s a tough pitch to say $81 in a in a patent case. But overall, when you look at this, what I couldn’t understand it’s, it was an $825,000 award to begin with 100, some odd 1000 In briefing, and now they’re asking for a $500,000 retrial. At the end of the day, if they get everything they want, it’s going to cost them more than the than the verdict as it was. So

 

Michael Smith  07:00

it will, but I will say in their defense, damages awards, and the basis for damages awards are always a dangerous thing to take to the Federal Circuit. So the cost may not make sense, if you were just looking at what would happen at the trial court level. But when you keep an kind of keep in the back of your mind, what’s going to happen on appeal. That $825,081 argument looks silly on paper. But on appeal, that’s going to turn into that there was no basis for a damages award at all. So I don’t know it’s, I hate to throw stones. Because a lot of times arguments that I thought were just ridiculous. On paper, ends up a judge somewhere agrees with so we’ll just have to see what happens here.

 

Wayne Stacy  07:54

And I don’t disagree with you. But sometimes being right is more expensive than being wrong. And in these cases, so law, lawyers don’t come cheap.

 

08:02

That’s exactly true. That is exactly true. Now,

 

Wayne Stacy  08:06

there was a one on one issue in this case to around lack of utility, which caught my attention. You don’t see that a lot. But of course, the court kind of dismissed it out of hand.

 

Michael Smith  08:20

Well, the the court made findings, findings of fact and conclusions of law on utility. And I did think that was interesting, because I agree with you. I haven’t seen that before. So I was a little curious why it was handled that way. But that’s one reason this is an interesting order to read. I love J mol opinions, because they’re there. They’re like, I mean, I would read them for bedtime if there were enough to go around. Because it’s a fascinating story of what happened at the trial and what people argue. And I just think they make for good reading. And they’re very educational. And here to see a story that you’ve heard told before about unpatentable subject matter told in a different way, by a different voice. It was really kind of interesting.

 

Wayne Stacy  09:07

Well, Judge Gilstrap got a second J mol. Opinion out last week, what do we what do we take away from that one?

 

Michael Smith  09:15

Well, that one was actually on a case that we won a patent case back last April. And the judge put out a couple opinions on that. The first was the J mol in motion for new trial that was asking to set aside the jury’s verdict. And the court found that the jury was presented with substantial evidence supporting the finding of no infringement. He went through all the arguments that were made for why that wasn’t the case and explained why he didn’t find that same thing with invalidity found that there was substantial evidence to support the jury’s finding. The one thing that I think is interesting here is something that I know because I saw it happen at trial. One of the arguments was that about an objection that was made a trial. Well, this is a basis for for new trial that are the judgment should be set aside. And the court talks about the timeliness of an objection. And according to the order, two days after opening statement, the plaintiff asserted for objections to statements that were made by the defendants lawyer in their opening statement. And the court said at the time on the record, and then again in this order, that is that is untimely. But he also goes on to say they were not setting that aside. They were not so prejudicial as to warn a new trial. So it reminds us, you have to make your objections timely. So let’s say that those had been something that was so prejudiced prejudicial as to warrant a new trial, the plaintiff would have lost that argument by not raising it timely. Again, this is back a year ago, when we were trying when we were doing jury selection, and opening statements on Friday, and then starting the evidence on Monday. So you have that happen on Friday. Then on Sunday emotion rolls in objecting to something that happened on Friday. And Judge Gilstrap says that’s not timely. So that’s, that’s something that’s a lesson to be learned is if you’re going to object to something, you got to do it timely.

 

Wayne Stacy  11:12

So my goal, I think, if I remember my civil procedure correctly, the court has the ability to take these untimely objections anyway, if something’s so troublesome, even if you don’t object to it, the court can level the playing field later on. In this instance, to you we see the untimely in the lack of prejudice kind of being evaluated together.

 

Michael Smith  11:38

In this order, yes. When it was first raised, of course, the court had had to make the same analysis the the objections came in and the in the court says this was untimely if somebody had a problem with this. Or if this really was improper, then you should have objected at the time. And I seem to recall that the court had some dissatisfaction with both sides about what was done, and why wasn’t something objected to or why wasn’t objected to timely, and then we could have had the substantive discussion about No, this was proper, but because of the lack of timeliness, the court goes straight to the procedural flaw right there. It could have been, let’s say it was that bad, it could have been corrected when it happened. Unlike closings, where this this particular judge doesn’t like objections, during closings, openings are not argumentative. So you’re free to stand up and say, Your Honor, that’s not appropriate for such and such reason. And I think the argument here was, the plaintiff argued, well, this violated a motion and lemony if they had stood up and said that, then the other side could have responded well, no, your honor. We don’t think it does. And the court could have decided yes or no, and then instructed the jury to disregard if he thought it did it deprive the court of the ability to fix the problem at the at the best time and makes it more difficult to fix it several days down the road.

 

Wayne Stacy  13:07

So Michael, what is your experience tell you about this kind of situation about objecting to legitimate but marginally impactful information coming in and in the opening?

 

Michael Smith  13:22

I don’t I think the best advice is almost always not to object and just deal with it in the evidence, deal with it in the evidence. And then in closing, go back to what was said in the opening in showed and show the jury what the other side promised you turned out they couldn’t support with evidence in in judge Gill straps court, there is an enormous emphasis laid to the jury repeatedly on the importance of basing the verdict on the testimony from the witnesses, and the written documentation. And I think that makes it very easy and logical for a lawyer in closing to point to that and say the other side promise you 1234 Look at what came in, they never put anything on on two and three. And I think it’s especially on the shorter trials where you start on Monday finish on Friday, you can very effectively deal with it that way. I don’t, I can’t recall ever objecting on opening, because if the other side goes too far, it’s because they’re promising the jury something that I think they’re not going to be able to prove I don’t want to stop them from saying that. I want them on the record. Get, Your Honor. I mean, ladies and gentlemen, the jury the evidence is going to show you that they did this well, if I think the evidence really isn’t going to show that I’m happy to have them promised the jury something that they can’t deliver.

 

Wayne Stacy  14:47

Well, this the scale of one case provides I think, a really, really nice explanation on 285 It looks like this was a pretty typical, you know from the outside for factor pretty typically hard fought patent case in the court laid out a nice set of boundaries for 285. And these kinds of hard fought cases.

 

Michael Smith  15:12

Absolutely. This is the second to 85 Order we’ve gotten from Judge Gill strap this month. And as you said, it lays out the standards, it says what is sufficient and what isn’t sufficient. And in this case, the court is dealing with the common issue of a claim being dropped during trial, or a claim that continues to be asserted and then wasn’t dropped later. And he points out that the development refining and narrowing of a case as it proceeds to trial is never a perfect process. Two weeks ago, he was saying it was okay that the plaintiff continued to assert a claim against a product called trial, then during trial, they decided to stop here, he’s saying it’s okay for the plaintiff to narrow their claims as they get closer to trial. There’s some leeway there. It reminds me of what a friend of mine from Longview, lawyer, Joe Young used to say my cases don’t start out frivolous, they just end up that way. And you don’t want to punish a lawyer for realizing that they just can’t get their light in the case and dropping something. So there is something of a safety zone there. You see the complaint that this was unreasonable litigation behavior. And you see the court going through and saying, what he thinks about whether it is or whether it isn’t, and that provides us all guidance with doing there is a tendency for everyone who wins a patent case to file a 285 motion. And this gives you some ammunition to go back to your client and say, okay, great, we won. But was it really enough that we need to go spend money asserting a 285 motion, because in many cases, you may not have liked what happened. But the court sees so many of these cases, that they can tell what’s exceptional and what’s not in a way that perhaps a client that’s only been in one of these cases can?

 

Wayne Stacy  17:14

Well, and that’s a really interesting point that these judges between Giltrap and Albright Zahn seen so many cases, they actually have a good feel for what’s typical, and what’s not typical, that same behavior may have been 285, or justified a 285 Award and a lot of other courts around the country based on what those judges have

 

Michael Smith  17:37

seen. Well, and judge Gill strap, I can’t remember the case. In the last few weeks, he said exactly that. He said there’s conduct in this case that would normally be exceptional. But in these types of high dollar high stakes patent infringement cases, it is not exceptional. So if I did the same thing, in a case that was a lot smaller, that was more of the normal civil litigation, probably would be considered exceptional. But it’s not in this type of litigation, simply because of the characteristics of the litigation. And that’s a statement that I’ll be taking back and showing to clients and showing to co counsel over and over. Just because you saw some sharp practice. The question isn’t whether they’re sharp practice, the question is, is the practice exceptional when you compare it to what you see in every other case? And I think most of us, when we look in the mirror will probably say, you know, this is this is the same thing you see in pretty much every every case, there’s there’s pretty, pretty good advocacy in these cases in pretty sharp advocacy. But that doesn’t mean that’s exceptional.

 

Wayne Stacy  18:46

Well, you know, just seizing on that theme of sharp advocacy. The Longhorn case was a motion to strike an expert based on discovery or a legend discovering misconduct. And this seemed like an incredibly aggressive motion for what is almost a case ending sanction to lose, to lose an expert on on the technology. So what what, what do we take away from Judge pain here?

 

Michael Smith  19:17

I think what we we take away from this is that courts are actually interested in cases being decided on the merits. And they’re very reluctant to impose a case ending sanction, if there’s not serious conduct to that requires it and what he points out here is, as soon Yes, the source this particular source code wasn’t produced initially. But he says once it became relevant, it was produced. And yes, it was at the end of fact discovery but that the parties had an agreement on amending contentions, and when the plaintiff provided notice of its infringement theories as to source code. That’s why this source code often runs behind other facts in the case because it’s added later in the process, it’s examined later, the plaintiff has access to it later. It’s examined later, it’s analyzed later, the defendant finds out what the plaintiff is saying about it later. So it’s not really unusual for analysis of source code come in a little later. In the end, the court kind of had an easy, easy time with this one, because it pointed out you had an agreement on amending contentions. This is not a case where one party has sandbagged the other and come up with something light that they can’t defend against you can defend against this. So let’s go forward on the merits. But I do think it’s a good case for people to read to realize that the court, at least these judges are not looking at things as gotcha moments. They’re really trying to make sure that everybody gets a chance to present the fairly disclosed theories and evidence at trial.

 

Wayne Stacy  20:54

That’s a great way to put it. It’s it’s about getting it to trial, and I guess is the reputation for the Texas courts. They believe in the jury and want the juries to have the the evidence that it would need to make a decision. So

 

Michael Smith  21:09

it’s infuriating when the judge is trying to be fair, it’s like, oh, that’s not what I wanted. I wanted you to pour the other side out on that argument. And it’s just frustrating. You have to go back to your co counsel and say, you know, I hate to say this, but this judge tends to be kind of fair. matches, we may hate it in this case.

 

Wayne Stacy  21:30

Well, it can save you some briefing costs on the front end.

 

Michael Smith  21:34

Well, it can if you realize I tell people over and over, you have to realize that the court is looking at this from a different perspective that you are, we’re looking at it from a perspective of we’ve got these great arguments, and this audit result in this outcome. And we’re not. I mean, that’s why that’s why we in an adversarial system, there’s one person over here, that is not an in an adversarial position. And that’s why we have them there.

 

Wayne Stacy  22:02

So, Michael, you you’d identified another case, a signal case, it’s from a legal perspective, it’s a summary judgment. So successful summary judgment of non infringement. Nothing really magical about that. But you pointed out something in this, that is a great lesson for young lawyers, seasoned lawyers. Kindergarteners, don’t throw your teammates under the bus. And I love this quote.

 

Michael Smith  22:35

No, I think I mean, you’re right. It’s it’s the facts are what make it’s it’s an unusual holding. It’s an unusual, holding to see a judge that grants summary judgment of non infringement on the eve of trial and enters final judgment. And there were some unusual facts here that justified that. So I mean, that’s interesting to look at. But the thing that I observed in some of the hearings in this case, is that there were situations where the court would raise a point. And one of the lawyers just said, Well, that was the prior lawyers in the case, your honor, and that’s why they’re the prior lawyers, and why they’re not working on the case anymore. Unfortunately, for their position, the argument they were referring to was made by the lawyer that was sitting next to them their partner at counsel table, and we actually had a slide that had that lawyer’s name on the cert petition to the Supreme Court. So it was a misrepresentation that it was the prior lawyers, but it’s bad for him to throw the prior lawyers under the best to, but in this case, lawyers throwing his own co counsel under the bus. And then at a later hearing, the court gets on the lawyer who’s arguing a position and says, I don’t agree with this position. And I’m very surprised to see you arguing this position. And the lawyer says, I hope you understand, although you did point your finger at me, I didn’t write that brief. And the the lawyer said, who did write the brief, who’s sitting next to him just kind of popped around? And the court says, I don’t understand that your names on it. And he says, well, it’s not on the signature block, Your Honor. Now, I then did admit, okay, I’m kind of stuck with the arguments we made. But that’s bad. That’s bad form. If you’ve got a bad argument you have to own either own the argument or take the argument out, but do not throw people under the bus, not your co counsel, not your legal assistant. It’s just, it’s just a bad. Nobody likes it when you do that. Not the judge, not the jury, not not your colleagues. But I just hadn’t seen somebody do that. But since we saw it a couple of times, in this case, it got to be I mean, when you go when you get pushed into a corner, you either fight your way out or you die in the corner, but you don’t blame somebody else.

 

Wayne Stacy  24:56

And we all know that there. We’ve all inherited cases from And prior counsel positions that maybe didn’t warrant keeping for, you know, keeping, there’s a procedure for dealing with that. And you don’t wait to you’re called out to blame somebody else. If it’s a bad argument, I think you really have an obligation to tell the court beforehand that hey, this, this shouldn’t be part of our brief were removed. Right.

 

Michael Smith  25:20

Right. And if there have been prior developments in the case, the thing that I mean, the court is going to figure out what you’re responsible for and what you’re not, and they understand the box you’re in. You don’t have to blame people. The court and I saw that happened not too long ago, in a situation where we’re obviously someone earlier had made a mistake. And, and the party was kind of stuck with that mistake now. And the court understood that. And to their credit, the lawyer never blamed never mean, it was obvious what happened, but they never said, Hey, this was the prior lawyers that screwed this up. All you have to kind of the court is aware of of the court will be aware that it wasn’t your mistake, but that’s still not justification to expressly dump on somebody else. either try to fix it or live with it.

 

Wayne Stacy  26:14

So I would have loved to have been a fly on the wall and chambers after that hearing to hear people talking about to throw the CO counsel under the bus that was sitting next to him. Well,

 

Michael Smith  26:25

we talked about several months ago. I mean, when this order came out the judge’s opinion. The magistrate judges opinion recommended granting summary judgment was pretty emphatic that I’ve never seen an argument like this before. And I don’t recall if he pointed out that part of it. But this was an extraordinary argument from the courts perspective. Unfair, unfortunately, I didn’t see it. I was upstairs in trial when it happened. So I didn’t find out about it until I got the transcript and looked at it and was like, Oh, my goodness, this didn’t happen again, did it and my co counsel told me Yeah, I really did. But, well, it’s nice when it’s the other side’s problem.

 

Wayne Stacy  27:11

Well, that’s one. That’s that’s a lawyer made problem, not a not a fact problem. Lawyers have to find a way around. But like I said, that’s a good lesson for lawyers and kindergarteners. Don’t throw your teammates under the bus. Yep. So judge Gilstrap had a pretty sharp set of words for for Amazon and one of its transfer motions. And it’s a good morning for everybody else, it seems

 

Michael Smith  27:39

right. He denied a motion to train transfer. And he found as a factor that weighed heavily against transfer that Amazon had waited more than seven months to file a motion. Now there were other defendants that had gotten out, but they waited five months after that. And then when he and then it jammed him up against the Markman hearing. And they said, well, but the only thing the Federal Circuit has told us is that this just has to be decided. Before Markman judge Gill strap was like, well, blah, blah, blah, but we’ll wait a minute. What the Federal Circuit has told us is that this needs to be resolved as early as possible. Not that you can wait till the eve of Markman filed the motion file a motion to stay the Markman. This was way untimely. And and that is what appeared to have influenced the analysis set heavily here. It’s the rare case where where a defendant that thinks they have a good argument to transfer will wait to raise it. But this is the reason why, if you if you wait to raise it, you may have a motion that would have been granted. Had you found it timely, that gets denied.

 

Wayne Stacy  28:48

It’s I think, you use the right word they’re rare. I’m not think I’ve seen anybody wait this long to file

 

Michael Smith  28:57

I have seen I mean, it’s not unusual for people to sit on on transfer arguments for a while in the past. But I think that’s just there’s no reason to do it. The the facts don’t get any better for you the case law doesn’t get any better for you. And if your whole objective was you really think another form is clearly more convenient. Make those arguments early the case law is decidedly in your favor early, and you can lose some of that good case law by waiting.

 

Wayne Stacy  29:30

So Michael, a little bit of your expertise will be helpful. As we move to the Western District of Texas. It seems the judge all brights experimenting with new procedures, trying to streamline processes, trying to give lawyers a good set of rules and guidance on how to handle things going forward. And that’s this, you know, his new procedure on the 300 or 500 word submissions, but it seems like those are going a few different way AES these days, and I’d love to see where what you’re going to be advising people how to handle these what to ask for, and how to learn from them.

 

Michael Smith  30:08

Well, one thing, and we’ve got two cases to talk about this week, when you have a discovery dispute with Judge Albright, you don’t file a motion, you have a written submission by email of 500 words aside, generally, and then you have a chart where you put in what exactly you’re wanting the court to do. And then after the judge makes a decision on the hearing, you then are required to put together a proposed order. And what we were told at a recent patent Rules Committee meeting is, you know, it might be helpful to people, if when you did the proposed order, if you put the 500 words submissions in, or you put something in that would provide background on what the dispute was. Now, the court may write his own opinion, he may decide to write a completely customized opinion with here’s what the dispute was. And here’s what I did. And here’s why. But it saves time, if in the ordinary course parties put together proposed orders, I mean, we’re used to doing that. What’s a little odd here is people are taking that invitation. And we’re seeing lots of orders come out where you can tell the party’s cut and paste it in there. 500 word submissions. And then at the end, the court will have three or four paragraphs of okay, yes, on this no on this Yes, on this No. And this, nothing wrong with that. It makes for very entertaining reading. It’s just a little schizophrenic at times, because the first half of the opinion is all adversarial. And then when you get to the end, the court comes in resolves things. It’s kind of like, it makes it very dramatic. It makes it a lot of fun to read. But what I think people are missing is, once the judge has decided this argument worked, and this argument did not work. I think I would not simply cut and paste in those 500 words, I’d probably go back, take some of the rhetoric out and simply put in, here’s what the dispute was. And the plaintiff identified this and they weighed this and believe that the court should do it because of this. And this and this and the defendant, write it a little more like what the order would look like at the end. Again, I don’t mind it like this. It’s a lot more fun. But what it tells us is we have different types of orders coming out, some written by the court, some perfunctory written by the parties, some like this written by the parties, but I think we might be better served to go back and decide how much of that 500 words is really necessary when there’s no longer anyone to persuade?

 

Wayne Stacy  32:41

Well, Michael, in this, the first one that came out, which is the the argumentative style up front, and then the Court addressed four or five issues. The first issue the Court addressed kind of caught my attention in that was basically what was the court’s exact language here, you know, denied the motion to amend contentions or, sorry, denied the motion to require amended contentions and use the language without setting any minimum standard for how void Powell must admit its contentions. So it seemed that the court looked at this and said, Oh, I don’t even know what to do with your request. I don’t know how to order it. You didn’t give me the right language. So denied?

 

Michael Smith  33:31

Right? That’s one thing I’ve seen a lot recently, I had a phone conference with judgments and a few weeks ago where he repeatedly asked the party Okay, well, what is it that you want the court to do? Tell me what you would like the court to order the other side to do? And to my surprise, they weren’t prepared to tell him. And I think you need to, you need to think that I mean, the courts been very clear, I want in a box in the email the exact language for what you want me to do. So I know where you’re trying to go with this. And, and judge Albright has given us some really entertaining characterizations of how what style of advocacy he feels is effective on these types of disputes. So I think you’ve got to make clear what it is you want the judge to do. We tend to get sidetracked with how wrong the other side is, and how unreasonable the other side is. And we aren’t thinking in terms of what’s the language in an order that will address what it is that I’m seeing that I see a problem with Pete, that’s one reason. I mean, I’m fatally biased in favor of people doing clerkships at the district court level. For that reason. You just have to understand that everything you do, has to end up fitting into a document that the judge puts out whether it’s an order, or jury instructions or or a verdict form. So Think of it in that terms?

 

Wayne Stacy  35:01

Well, the think the language the court uses that I would pin to my bulletin board. The court denies the relief requested, because the requested relief is too vague to be meaningful. That is the definition of an unforced error.

 

35:18

Right. Right. So

 

Wayne Stacy  35:22

So anybody, anybody should start with that sentence if they’re thinking about a discovery motion?

 

Michael Smith  35:28

Yeah, I mean, there but for the grace of God, go i But But yeah, absolutely think real hard about what it is you’re asking the court to do. And whether someone who is not on your trial team would actually agree with the relief that you’re requesting, because that’s, that’s what I saw was that they, they thought what the other side was doing was wrong. But they couldn’t articulate what the judge could do about it.

 

Wayne Stacy  35:52

So Michael, the thing I’m taking away from seeing this week after week, that seems very different than a lot of other courts. The volume and the dedication of Albright to writing up discovery disputes, is providing guidance that lawyers need to know about. Oh, and

 

Michael Smith  36:11

that’s exactly. And that’s what we’ve told him that’s helpful to us. And he’s told us, well, here’s here’s a way that you can help me is to put is to give this sort of background, and now he’s inviting people to put it in proposed orders. So that when I get these orders back Well, now, in fact, I just this morning, before we got on, I had a meet and confer, where people were having discussions about whether judge Albright would or would not order something. And we’re referring back to things that he said in orders. Well, this is how I think he sees this Well, before we had those orders, we were just flying blind. So they are very helpful to practitioners. And I appreciate that people are putting him in, I’m just telling you, I enjoy reading them really more than I ought to, because they just they include such interesting color that you wouldn’t get if the court was writing all of it.

 

Wayne Stacy  37:04

So here’s the question for you. Are these persuasive when you go to the Eastern District of Texas or the Northern District? Well,

 

Michael Smith  37:17

I think I think rhetoric is not as persuasive. What two things First of all, I don’t think rhetoric is nearly as persuasive as we think it is on our side of the rail. I think something that’s a little calmer, and a little more logical works better. The other thing I’ve heard from judges is especially on Discovery disputes, party seeking relief, 10, not to give them metrics on why something is wrong. I remember, former Magistrate Judge Chad, Chad Everingham telling us one time, you know, what y’all never give me is you say it’s so burdensome to respond to this, but you never give me metrics. You never give me an estimate of here’s how long it would take, here’s how many pages here’s how many man hours it would take for our client to come up with this. Now, I realize that’s not always easy to do. But that was something that he saw repeatedly was you were you were making conclusory statements about how prejudicial something was. But you weren’t giving him metrics. So that’s the thing that I would that I always consider when I’m doing this. And all in I tend to want to ratchet down the rhetoric, the rhetoric a lot. Poison pin language is almost uniformly disliked by the judges that I that I practice in front of, and there’s just no upside to using it.

 

Wayne Stacy  38:40

It’s therapeutic to write and that’s what the delete button is for. Exactly. So Well, Michael, we’ll leave it with there for this week. Once again, thank you for sharing.

 

Michael Smith  38:51

Well, thank you. I look forward to next week. Take care. Bye bye