by Lee Gesmer | Oct 8, 2008 | Courts
Two articles in the September/October issue of the Boston Bar Journal (pdf file on BBA site) are of particular interest.
In the first, entitled “Continuity and Change in the Business Litigation Session” Superior Court Judges Judith Fabricant, Ralph Gants and Stephen Neal discuss the Business Litigation Session (BLS) as this session approaches its eighth anniversary and continues its transition following the retirement of Judge Allan van Gestel, who ran the BLS for its first seven years.
Some interesting statistics cited in the article:
- The BLS (both sessions) takes about 300 cases per year. The court has approved 95% of applications for entry.
- In each of the two sessions (BLS1 and BLS2) there are fewer than 500 cases pending, as compared with over 800 cases in the other civil sessions in Suffolk County (on average).
As a reminder, links to the BLS Administrative Directives, “Formal Guidence” memos and Procedural Orders are here.
In the second article Federal Magistrate Judge Robert Collings discusses the “discovery saga” in the Qualcomm v. Broadcom patent case in San Diego. In that case it was discovered during trial that highly relevant documents had not been produced during pre-trial discovery. After trial, it was determined that over 300,000 relevant documents had not been produced. Needless to say, when that happens the “sugar hits the fan,” with awards of attorney’s fees and sanctions to follow.
Judge Collings is our federal district’s judicial e-discovery expert, and his commentary on this case (with his “analysis and lessons learned”) is essential reading.
by Lee Gesmer | Oct 7, 2008 | Courts
- Jurors like to be able to submit written questions during trial (who wouldn’t want that option?)
- Jurors like preliminary jury instructions from the judge (who wouldn’t want to be oriented on the legal issues in the case at the outset?)
- Jurors like interim statements by counsel, rather than waiting until the end of the case (who wouldn’t like to be told what’s going on at various points during a long trial, rather than have to wait until the end, when it may be difficult to remember the testimony of witnesses who testified weeks earlier?)
All of this, and a bit more, is in the Seventh Circuit Bar Association American Jury Project Commission Report.
Lets see, the commission was comprised of three co-chairs, a four-person Executive Committee, and fifty eight (58) lawyers and judges, mostly from Chicago, and took three years to generate its report. Wow, those commission meetings must have been great networking opportunities. The full two hundred page-plus pdf report is here (click at your own risk).
by Lee Gesmer | Aug 7, 2008 | Courts
Litigation takes the place of sex in middle age.
Gore Vidal
I wrote in some detail almost two years ago about how trials can be very bad for clients. In the linked article I wrote:
Sadly, too many lawyers (you hear their ads on the radio and see them in the legal journals – “courtroom lawyers,” “trial lawyers”) are often as willing to take their clients to trial as generals are to commit their troops to battle.
Now, a study reported in the New York Times seems to find empirical confirmation for this. I quote from the article, linked here:
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.
That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer. . . .
In just 15 percent of cases, both sides [plaintiffs and defendants] were right to go to trial – meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered. . . .
Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial. . . .
“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial . . . .” The findings suggest that lawyers may not be explaining the odds to their clients – or that clients are not listening to their lawyers. . . .
Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner. Clients do not like to hear such news.
Human nature being what it is, I don’t expect this to change anytime soon. After all, the fact that social scientists report that people tend to buy stocks when they’re high and sell them when they’re low doesn’t seem to affect most investors; the fact that half of all marriages end in divorce doesn’t seem to cause people to hesitate before getting married; and the fact that the odds favor the casinos doesn’t stop people from betting at the casinos. And so it goes ….
by Lee Gesmer | Jul 21, 2008 | Courts, Litigation, Technology
Anytime these judges write an opinion, it’s treated like a papal encyclical,” . . . They really influence other judges, who act like these are the rock stars of their profession. . . These ‘rock star’ judges are not surprised that they, and not the new rules, are still the final word in e-discovery. . . .
Quoted from Rockin’ Out the E-Law, ABA Journal, July 2008.
Rock star judges, huh? OK, I’m trying not to wince, laugh or, well, you know… The American Bar Association needs to sell its publications, so you can’t blame them too much, I suppose.
In any event, this article names several judges as prominent in the area of discovery of electronically stored evidence (“ESI”), including Chief Magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland, Se
by Lee Gesmer | Jul 10, 2008 | Courts, Readings and Novelties
Lawyers from out of state often ask me about the judges that their cases are assigned to in federal district court. What are they like? What’s their philosophy? Are they pro-plaintiff or pro-defendant? (good luck on the last one …).
Most of these judges hold their cards close to their chests, but U.S. District Judge William Young is an exception. His keynote speech before at a Florida Bar event last June is on the Boston Bar Association website, and any lawyer practicing before Judge Young is well advised to read it, along with Judge Young’s 2004 decision on the federal sentencing guidelines. Judge Young’s judicial philosophy is clearly spelled out in these writings, and you’ll be far better prepared appear in his courtroom if you’ve read them.
by Lee Gesmer | Jun 3, 2008 | Courts, What Were They Thinking
The best aspect of law school is the subordination of math. Anon
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Are judges good at math? Foolish question, of course. Since many lawyers have a math phobia, it follows that many judges would, as well.
Nevertheless, a group of academics gave a three-question quiz to a group of several hundred trial judges. The purpose of the quiz was to determine whether the judges’ style of cognitive reflection, as a group, was “intuitive” (i.e., bad) or “analytical (i.e. “good”) decision makers.
Here are the three questions. Each one is designed to have you “jump” to a quick, intuitive wrong answer, whereas analytical reflection will lead to the non-obvious right answer.
(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? _____cents
(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? _____minutes
(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake? _____days.
Not surprisingly, the judges failed miserably. 31% got all three questions wrong, and only 15% got all three right. Yes, for the most part lawyers and judges are bad at math. Does that mean they are intuitive and not analytical? I don’t think so. Ask the question in the wrong language, and you are sure to get the wrong answer. I think judges and lawyers are particularly good at an (arguably) more complex, but certainly different, kind of analytical thinking that may not carry over into straight logic or mathematics.
Here is a link to a download site for the study: Blinking on the Bench: How Judges Decide Cases
Oh, and if you’ve taken the test yourself, click here to see how you did. If you’re a lawyer and you can’t figure out how these answers are correct (and your “intuitive” answers were wrong), you should be very glad that you went to law school.
by Lee Gesmer | May 27, 2008 | Courts
Very few judges blog, but Massachusetts Federal District District Court Judge Nancy Gertner is one of the first, if not the very first. An article in the May 27, 2008 Boston Globe discusses her blogging for Slate, one of the best online magazines.
If you’re interested in reading Judge Gertner’s blogs, go to “Convictions: Slate’s Blog on Legal Issues” and use the “Search This Blog” field in the upper right corner of the screen to search for “Gertner”.
Judge Gertner’s first blog entry, on March 17, 2008, opens as follows:
I am an unlikely blogger. I am a United States District Court judge for the District of Massachusetts. . . . Although judges are more limited than other public actors in what they can say about a host of things, like cases pending before me or even cases pending before other judges, we are permitted to speak about the administration of justice and other general legal matters. To me, the issue goes beyond what we are “permitted” to comment about and what we are not “permitted” to comment about. I think judges have a responsibility to participate in the public debate and that’s what I hope to do here — all consistent with, indeed enhancing, my “day” job.
Click here for the full post.
by Lee Gesmer | May 19, 2008 | Courts, What Were They Thinking
You may recall the brouhaha that arose last year when a Massachusetts state district court judge vacated a prior state court conviction in order to mitigate the impact that the conviction would have on the defendant under the federal sentencing guidelines in an upcoming sentencing in federal court. The defendant, Matthew West, was due to be sentenced in federal court by Judge Young later the same day. Under the federal sentencing guidelines, the existence or non-existence of a prior conviction made a huge difference in how much time West would be required to serve under the guidelines. Hence the urgency (on the part of West) in getting the earlier conviction vacated so it wouldn’t be counted against him.
The whole bizarre story is described here. You may recall that after that story broke the judge was the subject of massive public criticism (think talk radio, Boston Herald). She ended up in the emergency room with chest pains, and upon recovering she changed her mind and reinstated the conviction. Wow. Being a judge in Massachusett is very stressful. (For another example of just how stressful, click here).
Now Massachusetts Federal District Court Judge William Young has used his sentencing memorandum in the Matthew West case to expound his views on the legislative and judicial history behind the guidelines. This 35 page memorandum, available here, is a brilliant, exhaustively researched and opinionated discussion of the extraordinarily controversial issues associated with mandatory sentencing guidelines. Suffice it to say, Judge Young was no fan of this law (which was demoted from “mandatory” to “advisory” by the Supreme Court in 2005 in Booker v. United States and subsequent cases), and he is highly critical of the law, even as it is applied post-Booker.
As a sordid bonus, the memorandum includes the 15 page transcript of the hearing before the state court judge at which West’s state conviction was vacated, including the famous quote from the judge, “Tell him it was an early Christmas present.” The question of who said this is likely to be a trivia question for Massachusetts lawyers for years to come. The answer: Justice Diane Moriarity.
by Lee Gesmer | May 8, 2008 | Courts, Trademark
What does it mean when a contract requires that notice be given “in hand”? Believe it or not, despite over 225 years of Massachusetts jurisprudence, until now no Massachusetts court had ever considered this question. In McMann v. McGowan, 17 Mass. App. Ct. 513 (2008), decided on April 7, 2008, the Appeals Court held that “in hand” means delivery into the hand of an authorized receipient. The Court rejected the argument that “in hand” includes delivery by hand, the position argued by the losing party. Of such things the law is built.
Everyone knows that false or deceptive advertising is illegal, but a recent decision by Superior Court Judge Thayer Fremont-Smith provides a reminder of how difficult it is for a competitor allegedly harmed by false advertising to prove actual harm and damages, except in the rare case where there are only two firms in the market. Where there are more than two competitors, as Judge Fremont-Smith points out, “it cannot confidently be inferred that any customers procured by defendants’s false advertising were at plaintiffs’ expense.” While not dismissing the case outright, recovering any damages looks like a steep uphill fight for the plaintiff in this case. IDT Telecom v. Voice Distributors, Middlesex Superior Court, April 11, 2008.
by Lee Gesmer | May 6, 2008 | Courts, Patents
A postcript on my last posting regarding the so-called “rocket docket” in the Eastern District of Texas. Our firm is counsel for a client in a patent suit filed in Marshall, Texas (the very heart of darkness for patent defendants, some would say) on November 2, 2007. To date (more than six months later), the Court has yet to schedule the initial case management conference which, under the local patent rules, is the “kick off” event for patent cases in EDtTx. To date, there has been almost no activity in the case apart from the filing of answers and a motion to dismiss (not yet acted on) by one of the defendants.
by Lee Gesmer | May 6, 2008 | Courts, Patents
“a renegade jurisdiction”
Justice Antonin Scalia, referring to Marshall, Texas, during oral argument in eBay v. Mercexchange
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There are all kinds of bubbles – stocks, commodities, housing, tulip bulbs, and even litigation. The Eastern District of Texas (EDtTx) has been the scene of a patent law bubble for the last seven years. However, like all bubbles, it can’t last forever, and it’s only a matter of time before this one pops.
The patent litigation history of EDtTx and the causa sine qua non of its popularity in with the plaintiff’s patent bar, Judge T. John Ward, are described in detail is an excellent article in the March issue of the American Lawyer. The article, titled “Taming Texas” and written by Nate Raymond, describes how Judge Ward nurtured the patent practice in Texas with a “rocket docket” and the support of pro-plaintiff jurors who are strongly partial to the protection of property rights. Among the highlights of the story:
- As of 2007, there had not been a defense win in a patent infringement case the district in three years. From 2001 to mid-2006 plaintiffs had won 90% of the district’s patent trials.
- The flood of patent cases in EDtTx has created an economic boom in the services industries (hotels, restaurants), and of course in the legal profession. Many lawyers who formerly focused on “PI” (personal injury) now focus on “IP” (intellectual property).
- Patent reform working its way through Congress would tighten the venue requirements for patent cases, and dramatically reduce the ability to file cases in ED Tex. The article has a sidebar titled “Waiting for the End of the World,” which describes the economic apprehension created by this proposed legislation. Of course, the local lawyers are nervous as well, and they are lobbying against any change.
- 860 patent cases have been filed in EDtTx since 2000, 350 in 2007 alone.
- East Texas judges are disinclined to grant summary judgment (meaning that cases are more likely to go to trial).
Of course, no trend can continue forever, and the pendulum appears to be swinging the other way in the last year, with a number of defense verdicts. More importantly, lawyers from outside Texas have learned what it takes to win there:
- First and foremost, it’s important to hire strong local counsel, and use them aggressively during trial. They can “talk Texan,” something that’s hard to do if you weren’t born and raised there. And local counsel doesn’t mean lawyers from Houston or Dallas – it means “country lawyers” from EDtTx.
- Second, jury consultants are particularly helpful in helping lawyers streamline these cases, and make them comprehensible.
Of course, every bubble contains the seeds of its own destruction, and the very thing that made EDtTx so successful is now contributing to its downfall. With a huge number of case filings, the district cannot maintain its reputation as a “rocket docket” that moves cases quickly to trial (something that plaintiff’s lawyers, who are often on a contingent fee, appreciate – inevitably, the faster the case moves, the less money is spent on it). 350 patent cases were filed in the district in 2007, and EDtTx is now the busiest patent district in the nation. In terms of speed, however, it has fallen to 18th, according to LegalMetric, a litigation analysis firm.
The American Lawyer article ends with a sobering warning – even if Congress does tighten up the venue requirements, litigation in EDtTx will not come to a standstill – lawyers are filing cases aggressively to be sure to “grandfather” them in under the current rules. The cases being filed today will precede any changes in the law, and be with us for years to come.
by Lee Gesmer | Feb 11, 2008 | Courts
One of the most highly respected Massachusetts Superior Court Judges, Allan van Gestel, retired on December 31, 2007, at the age of 72. A recent press release from JAMS shows that Judge van Gestel is following the time-honored practice of becoming a mediator and arbitrator for JAMS (or another large mediation/arbitration organization). A lot of judges that try this really don’t seem very well suited for the task, for reasons that escape me. Maybe they have a hard time transitioning from a position of near-absolute power to little of no power at all. However, based on a lot of contact with Judge van Gestel (Ret.) over the years, and knowing his reputation as former head of the Business Litigation Sesssion, I suspect he’s going to break the mold, and will be very successful in this role.
Oh, and despite the title of this blog entry, if there were ever a former judge that proved the proposition that 72 is the new 42, it’s Judge van Gestel.
For some earlier comments on Judge van Gestel, click here, here, and here, and search the site for even more.
