Judge Albright continues to provide detailed guidance on motion practice in his court. These cases illustrate what motions not to file and how to better craft the motions that you do file.

 

SPEAKERS

Wayne Stacy, Michael Smith

 

Wayne Stacy  00:00

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

 

Michael Smith  00:13

Glad to be here. Wayne. Good to hear your face, so to speak.

 

Wayne Stacy  00:19

Well, the good thing is this is not last week in Texas. This is the last two weeks in Texas, because you had to take some time off last week to do your day job and actually try a  case.

 

Michael Smith  00:29

We did we had a patent infringement trial and judge Gill straps court across the street here in Marshall. And so it was a good week, we got a jury verdict back of non infringement. Claim is valid but non infringement last Thursday. And since I lost one over there in November, I had almost forgotten how good winning one felt. But I was very proud of it very happy with our trial team in that case.

 

Wayne Stacy  00:57

That's one of the problems with with trial work. If you're only try one every six months, you get seems like six months to stew on a loss in about 10 days after the win you just go back to work and you've lost that high. So there's more downside than upside?

 

Michael Smith  01:14

Oh, absolutely. Absolutely.

 

Wayne Stacy  01:16

Well tell us what you what you learned in this this trial?

 

Michael Smith  01:20

Well, it was an interesting trial. I kind of got parachuted in a couple of weeks before trial on it, which is not my preference. But my co counsel had done a good job preparing it, which isn't surprising because the case was eight years old. This was a fight between two oil and gas drilling companies. Shortly after it was filed in 2014. Because the Eastern District was so short on judges, Judge Gillstrap shipped a couple dozen cases to a judge in Houston, Judge Atlas. And she worked up the case over the next seven years, there were some stays, there were some other things and then shipped it back when it was ready for trial. So when we went to trial, we had expert reports that were over two years old, and everything had been prepared before a different judge. So Judge Payne ruled on some final motions. And then we went to trial, but on reports that were over two years old. So that was interesting, the most important thing that I learned in the trial, which I knew, but it's never been more important than this case is. The judges the trial patent cases down here are very, very strict on your expert has to stay within the four corners of their report. And in this case, we were fortunate that the plaintiff's infringement expert's report was only 15 pages long. So we actually had Judge Gillstrap excluding some things at trial. And we had the unique situation where you know, those boards we always put up that has all the claim elements and your expert. Can I check this sir? Yes. Can I check this off? Okay, all the boxes are checked now. So does this mean there's infringement? Yes, it does. The expert actually couldn't check all the boxes in half of the claims, which is something you don't normally get. So by the time we got to closing argument, we were able to pull out the the boards and say, You never heard an expert testify on this. And that helped out a lot when it came time for the jury to look at it.