Tips for Assisting the Judge and Jury in Patent Cases

The program this morning ran a bit long, and we are behind, but there is such great information being covered here at the Improving Patent Adjudication Through ADR and Federal Court Reform symposium being sponsored by the Thomas Jefferson School of Law.  One particular presentation that was exceptional (and there have been many) is the presentation by Judge James F. Holderman, Chief Judge of the United States Federal District Court for the Northern District of Illinois.  I think everyone in the room could have listened to Judge Holderman for hours.  He started off his presentation by explaining that he comes from the home state of our new president, President Barack Obama, and he also comes from the home of recently indicted former Governor Rod Blagojevich, so there is both good and bad when you are from Illinois.  Judge Holderman explained that he is the one who authorized the original wiretaps on Blagojevich, and used this to transition into a discussion of patent litigation.  Huh?  Judge Holderman explained that patent litigators need to remember that the judges they present cases to are generalists who are not as familiar with patent law as might be most desirable by the litigators.  With 95% of a typical docket being related to issues other than intellectual property issues, litigators need to realize that the judges need their assistance.  He would later make the point that jurors need the assistance from patent litigators as well. 

The primary focus of Judge Holderman’s presentation was to explain how patent litigators can help judges and juries, and to do this he provided the Top 10 Tips to Trial Counsel for Assisting the Judge and Jury in Ruling on Patent Cases.  So as to not infringe upon any intellectual property that might be owned by David Letterman, he presented them in a style comparable to the Ten Commandments.

Thou Shall Not Present a Patent Case to a Judge or a Jury Without…

1. A clear theory for victory
2. Targeting your final argument
3. Anticipating your opponent’s arguments
4. Speaking understandable words
5. Telling the story
6. Using visuals
7. Organizing the exhibits for the decision maker
8. Presenting your theme early and often
9. Being straight forward and focused
10. Remembering you are “ON STAGE”

The meaning of some of these 10 commandments of patent litigation are obvious.  While others probably should be obvious I suspect they are not and deserve some additional attention.  For example, we as patent attorneys should always try and speak in understandable words.  As Judge Holderman explained that as patent attorneys we are experts, but we speak in thick jargon that the real world does not use. Judge Holderman suggested that we need to go out of our way to use vocabulary that will assist the jury in understanding the issues.  He said that we don’t need to dumb down the issues or concepts, just talk about them in ways that ordinary folks can understand.  This is critical because Judge Holderman explained that juries want to understand, they want to get it right, they try very hard to get it right, but if jurors don’t understand they will stop listening.

Another thing worth further discussion is organizing exhibits for the decision maker.  Judge Holderman explained that in his experience exhibits are ordinarily organized for the convenience of the trial counsel, making it extremely difficult for the jury to find exhibits and put the case together in a logical way when they retire to deliberations.  During the question and answer period Judge Holderman explained further that he allows exhibits to be numbered in whatever order makes sense, not in the order of introduction or likely introduction.  Such a simple concept, but one that really makes sense, at least to me.  That way, as one panelist pointed out, you can use the 10 most important exhibts in closing and refer to them as 1 through 10, telling the jury that from your point of view they need to consider and review those 10 critical documents.  With numbering them 1 through 10 the jury should be able to remember that and make it more likely they will consider what you want them to talk about during deliberations.

Finally, I want to talk about what Judge Holderman referred to as being straight forward and focused.  He explained that for real estate the mantra is “location, location, location.”  For the trial attorney the mantra needs to be “consistency, consistency, consistency.”  Judge Holderman explained you want to be the one person the decision maker can look to for the truth.  If you do this then you win.  What simple advice, yet quite profound.  Weave this together with the final commandment — remembering that you are always on stage — and you realize that jurors are not unlike most everyone we encounter in life.  If they trust what we are saying, and they perceive us to be in control, calm, cool, collected and competent, then the odds that our clients will be successful will go way up.

I am hardly doing justice to Judge Holderman’s presentation.  It was a rare glimpse into the world of a district court judge.  He was charming, entertaining and informative.  If we as litigators could present ourselves and our cases like that, while following his suggestions, we would do well for ourselves and our clients.  The unfortunate thing, however, is that there just aren’t many patent attorneys with any real litigation experience.  That is why I personally believe that the perfect patent trial team is one with the lead attorney being a litigator and the co-lead or substantive lead attorney being a seasoned patent attorney.  Lets face it, as patent attorneys we are challenged in important ways.  Not only do we have the whammy of being scientists, but we have the double whammy of being lawyers.  If we can know our limitations and team with a competent attorney who has as his/her skill set litigation, and they will listen to us on substance, and we stay out of the style end of litigation, the likelihood of success will go way up.