The New Patent Texas Hold’Em: Before Going All In, Attorneys Should Know that Marshall and Waco are Different Decks

Editor’s Note: the following article includes broad generalizations about diverse populations based on the author’s professional experience.

As a jury consultant with a wide breadth of experience across the country, I am often asked about the favorability of certain venues, but I was surprised two years ago at the Eastern District of Texas (EDTX) Bench Bar conference when an attorney friend of mine quietly asked what I thought about Waco as a venue for patent cases. I nearly spit my coffee out: “Waco?  That’s a terrible idea!”  “Why?” he questioned, “Isn’t it a small town just like Marshall or Tyler?” I proceeded at length to explain why the Waco division and Western District of Texas (WDTX) is dramatically different than the Marshall division and EDTX. I simply chalked the question up to a one-off inquiry, until I was asked the same question again multiple times from other attorneys at the last EDTX Bench Bar.

It was at the last EDTX conference that all the questions fell into place, when I heard about Judge Albright’s intent to prepare a new patent docket in Waco. Now forgive my initial ignorance, as a jury consultant I am not steeped in the legal wrangling and maneuvering that occurs among attorneys, but as a Texan with family from all four corners of Texas, I can assure you that the jurors in Waco are not equivalent to the jurors in Marshall. It would be a profound mistake for an attorney to believe jurors in the venues are similar—but that does not mean Waco cannot be a favorable patent litigation venue for both plaintiffs and defendants….if attorneys recognize the Waco division’s distinctive qualities.

Waco is not Marshall: Empirical Research Findings

Before addressing the profound cultural and demographic differences between the Waco and Marshall divisions, readers may gain the greatest appreciation for differences based upon lessons learned from empirical comparative research between the venues using hundreds of mock trial participants. When Judge Ward placed limitations on jury research in EDTX and Judge Davis and later Judge Gilstrap followed suit, one of the jury consulting companies I worked for began using Waco jurors to in an attempt to replicate Marshall jurors. However, the results at trial did not reflect their mock trial research—a tenuous goal to achieve in my view, but this consulting company took pride in claiming mock trials were predictive of actual trial outcomes. The lead consultant handling these cases was from California and had little appreciation for the differences between East Texas and West Texas. At one point, growing frustrated with inconsistencies between mock trials and trial outcomes, the consultant sat down and asked me as a Texan why the people in Marshall were different from the people in Waco?

I answered using a common Texas mantra that “Texas is where the South ends and the West begins.”  Southern attitudes and beliefs promulgate throughout East Texas and South Texas bordering Louisiana; however, Western attitudes and beliefs dominate more heavily through the rest of the state. Geographically, if you were to draw a line south from Dallas through Houston to the coast of Texas, then it would be a fair generalization to say Southern attitudes dominate on the eastern side and Western attitudes on the opposite. Ultimately, the consulting company abandoned Waco as a venue to replicate EDTX mock trials, drawing instead upon EDTX, and their trial results improved. But was the improvement because attorneys were trying an EDTX case to WDTX jurors or because EDTX is inherently more favorable than WDTX jurors?  As with any case, an attorney’s audience matters critically and tailoring one’s case to resonate with local jurors is paramount for success. This article lays out why the Waco division is different than the Marshall division, and why WDTX may prove even more favorable and fertile as a division than EDTX for both plaintiffs and defendants.

Southern vs. Western Attitudes in Patent Jury Trials

Community vs. Independence

Making generalizations about cultures and attitudes in Texas can prove hazardous because one always encounters exceptions coupled with strong personalities. This is what makes Texas such a colorful place; we are extremely varied and diverse, but one quality serves as a defining characteristic—independence. A southern attitude tends to be more community based: polite, gregarious, friendly—southern charm continues to dominate and persist in East Texas. Southern disposition relies upon manners and politeness to navigate community and social engagements; imagine the southern gentleman or lady as the archetypal figure, albeit with a Texas twist. In contrast, the western attitude is more independent, aloof, pridefully self-sufficient and wary of strangers—the cowboy would serve as a defining archetype. The western populace has been forced to rely on themselves because in remote landscapes, cities and towns tend to be scarce and serve more for re-stocking purposes than for socializing or communing. Dallas and Houston are a blend of both cultures, with Austin and Fort Worth clearly reflecting western identities. Waco offers some southern attitudes—the Brazos river culture still links it to the south, but as a city, it is predominantly Western in its attitudes and the Waco division draws upon a rural farming and ranching populace typifying western attitudes and culture.

Infringement Issues: Friendly Fence Lines?

When addressing the issue of infringement, attorneys often suggest that rural Texas juries value property rights, and thus rural jurors in both Marshall and Waco should want to protect the rights of patent holders. In my experience, protecting one’s property is important for every rural juror throughout the United States; however, conflating the two divisions misses significant differences among its jurors and how they may view infringement. While the long effective analogy of the patent and the property deed resonates with East Texas jurors, the same approach may not be as effective in Waco because property rights and land value have been treated differently in East Texas than in West Texas.

East Texas began as the state’s oil industry capital in the early 1900s, and East Texas residents have been inculcated with the inherent value of land and the need to protect one’s value. They also understand the importance of maintaining one’s “mineral rights,” obtaining “surface rights,” and the ability to lease out one’s land for royalty purposes—all useful analogies for addressing patent cases. East Texas continues to flourish as a source for oil and gas, and while far West Texas has grown substantially in its oil and gas development and success, Waco has largely missed out on any significant development.

Land represents a different symbolic value in West Texas. Surrounded by pine trees and swamps, East Texas does not have the open landscape of West Texas, nor does it have the once wide-open plains where cowboys ran cattle from Texas to Montana before barbed wire began to be widely used. After barbed wire, ranching and farming grew in popularity, with water availability and scarcity a primary concern rather than the possibility of oil. Farming land in West Texas was valuable for its fertile soil and well water, and ranching land was valuable for its natural springs and pastures, but fences were designed not to keep others off your land, but to be a good neighbor by keeping cattle off a farmer’s crops or comingling with other cattle. Fences remain optional in much of West Texas; even now it is common to pass miles and miles of farm land without seeing a barbed wire fence. West Texas’ wide-open spaces reflect the cowboy culture in which fences and boundaries are impediments to freedom; it is one’s freedom and independence that are most cherished in western culture.

With the fracking industry opening up new areas of West Texas, it is possible that jurors may relate to oil and gas analogies, but little development has occurred in Waco, and attorneys are more likely to encounter jurors who reflect traditional western culture. These western jurors may be skeptical of the need to acknowledge or protect a patent’s boundaries and hesitant to constrain an alleged infringer’s exploration of technology. A restraint of one’s independence and limiting freedom to roam may not be viewed as favorably in Waco as it is in Marshall. With the long history of land squatting in West Texas, Waco jurors may also be unwilling to see the inherent value in a patent that was not practiced or one that failed in the marketplace. They may also be reluctant to grant a large license for a product which may amount to “share-cropping” the profit from a farmer/producer, recognizing the long historical unfairness that a land owner would use against those who leased land for production.

Validity or Invalidity: the USPTO is the Government

Western jurors, and Waco jurors in particular, tend to be more suspicious of both local and federal governments. Texans in West Texas are suspicious and untrusting of the government because longstanding ranching and farming communities have been devastated by federal and state regulations that have made their industries significantly less profitable. In Waco, the federal government left a permanent impression of flawed incompetence and overreach during the Branch Davidian fiasco. While Waco was monikered “Wacko” following the attack, the sentiment of independence and a distrust of government persists. Fort Hood and the Veteran Affairs Hospital in Waco also contribute to a significant portion of the population in the Waco division. More skeptical than most about the federal government, soldiers and veterans will likely be even more willing to find fault in the U.S. Patent and Trademark Office (USPTO). Whereas EDTX jurors tend to be more trusting and accepting of the USPTO’s findings, often separating the Office from their traditional governmental skepticism, jurors in Waco tend to view the USPTO as a government entity and question whether the USPTO properly awarded patents.

Damages: For Better or Worse

Aside from San Antonio, El Paso, and Austin, Western attitudes also tend to be more parsimonious when it comes to damages. East Texas has long been legendary for its personal injury awards and more recently its patent verdicts. West Texas lacks similar legendary success in part because the populace is less community oriented and has a more individually focused—“pull yourself up by your bootstraps” mentality. West Texans are raised to depend heavily on themselves and expect a hard life that necessarily involves suffering. In a recent personal injury mock trial, western jurors criticized a wife’s loss of consortium damages request, claiming “that’s what you sign up for when you marry, for better or worse.”  This independent self-reliant attitude also means that damage awards tend to be dramatically reduced and that overreaching in one’s damage request can lead to significant blowback by jurors. Damages will also likely be dampened by the presence of military members, veterans, and/or their family members on juries. With the proximity of Fort Hood and the VA Hospital, soldiers, veterans, and their family regularly appear in the venue. And much like the self-reliant independent attitude pervasive in West Texas, individuals with military or law enforcement experience and their family members tend to award lower damages to plaintiffs.

In Part 2 of this article, we will discuss which EDTX division most closely reflects the Waco division, and explain how the WDTX can deliver success as a patent litigation venue for both plaintiffs and defendants.

The author would like to thank reviewers from NDTX, EDTX, and WDTX who contributed their thoughts to this article.

Image Source: Deposit Photos
Author: Syda_Productions
Image ID: 62731327