“What will serve Waco well as a patent venue is what has served EDTX well: clear rules, input into procedures, timely rulings on motions, reasonable time to trial, and confidence that case issues will be resolved by jurors rather than judges.”
As outlined in Part I of this two-part article, Waco, Texas residents exude a more western mentality than Marshall’s residents. The small town that once served as a pit stop between Dallas and Austin has turned into its own charming cosmopolitan city, serving almost as a bedroom community for those with periodic work in Dallas and Austin. Uber is building a transport station for its Uber flight service between Dallas and Austin, which may make Waco an attractive destination for commuters who want the feel of a smaller city but still want access to major cities like Dallas and Austin. The home renovators Chip and Joanna Gaines have also put Waco on a destination map for tourists to Texas or tourists from neighboring cities. Baylor University’s growth in academics and sports and the prestige of its law school fosters a more educated populace than one would find in Marshall.
Instead of attorneys comparing Marshall to Waco, they would be more accurate to compare the Sherman division’s Denton and Collin counties to the Waco division. Comprising about 80% of panelists in a Sherman division jury selection, jurors from both Denton and Collin counties exude a more western independent mentality than other Eastern District of Texas (EDTX) jurors. Denton and Collin counties have recently transitioned from ranching and farming into commuter suburbs a couple of decades ago, and now the counties have their own stand-alone cosmopolitan and sporting areas. Although lacking the diversity of the Sherman division, over time the Waco division’s growth will likely align it more closely to the Sherman division—a division much more friendly to defendants than Marshall.
EDTX Success: Jurors Not Judges
From a jury consultant’s perspective, Waco has always been friendly to civil defendants. Its residents have often been skeptical of a plaintiff’s claims and reluctant to award damages, typical of jurors in West Texas. Jurors in the Waco division are less willing to reward NPEs, more willing to challenge the U.S. Patent and Trademark Office (USPTO) by questioning a patent’s validity, and hesitant to award significant damages. But despite attitudinal, cultural, and demographic differences from their fellow Texans in the Marshall division, I am confident Waco will succeed as a patent venue because of three important factors: good Texas jurors, great trial attorneys, and a federal judge with experience as a patent trial attorney and who wants to ensure juries resolve case issues.
I often wondered why the Northern District of Texas (NDTX) Dallas division never became a hotbed for patent filings. Judge Lynn is an honorary member of the EDTX Bench Bar, always participates in the conference, has long encouraged the attorneys to file their patent cases in NDTX, and is part of the Patent Pilot Program. Prior to the Patent Pilot Program, I had performed some research for a client identifying favorable venues to file a patent suit based upon plaintiff win rates, time to trial, and demographics—the Dallas division was one of the top five most favorable venues for a plaintiff and some litigants on both sides view it as a viable venue. However, after speaking with attorneys over the years about the Dallas division, there are two main differences that arise when comparing NDTX to EDTX. First, the Dallas division’s heavy criminal docket means the time to trial may be slower for patent cases. Second, attorneys shared that the judges in the Dallas division have a greater propensity to grant summary judgment, whereas in EDTX there is a greater presumption, or at least the perception of such a presumption, to allow juries to decide the case issues. While Dallas has continued to struggle as a patent filing destination, what will serve Waco well as a patent venue is what has served EDTX well: clear rules, input into procedures, timely rulings on motions, reasonable time to trial, and confidence that case issues will be resolved by jurors rather than judges.
There is no doubt that jurors in the Waco division are different than the Marshall division; it would be a mistake for a trial attorney to walk into Waco thinking the divisions are the same. Geographically, culturally, attitudinally, and demographically the divisions are dramatically different, but that does not mean that Waco jurors will not get the cases right or that they will not get the cases wrong—that’s the nature of a jury trial. Waco jurors may view cases differently than Marshall jurors and adjustments will need to be made to ensure arguments resonate with Waco jurors. Damages may need to be more thoroughly tested to ensure requested amounts are not offensive to Waco jurors. But what excites me more than just the potential of the Waco division is the possibility of trying patent cases throughout the Western District of Texas (WDTX). The WDTX may have more attitudinal and demographic variety in its division than any other part of the country. EDTX has quite a bit of variety among Sherman, Marshall, Tyler, Texarkana, and Beaumont divisions as patent trial hot spots, but WDTX offers a much more dramatic difference between its divisions than EDTX.
Will WDTX Be Greater Than Waco?
Just the mention of Waco, Austin, San Antonio, Midland, and El Paso should convey the dramatic differences in geography, culture, and demographics within WDTX. If Waco offers a more traditional western mentality, then the Austin division proves a mixture of western independence mixed with California western attitudes and a high level of education. San Antonio and El Paso offer a more prominent Hispanic culture mixed with a heavy military presence and strong immigrant population, but both remain firmly entrenched within a western vaquero culture. Midland is oil country and has one of the highest concentrations of millionaires in the country. Knowing the WDTX, it is unclear whether the other divisions will embrace similar patent measures once cases fill the Waco division’s calendar. Certainly, Judge Yeakel as a frequent speaker at EDTX welcomes patent cases in Austin. San Antonio has posted several record verdicts over time, but the districts have yet to see the deluge that occurs in EDTX and is likely to occur in Waco.
Finally, Waco will likely succeed as a venue for patent cases for another well-known reason—Texas trial attorneys and Judge Albright’s oversight. I have been fortunate to work on cases in nearly all 50 states and to participate in nearly 100+ cases each year, stepping into jury trials several times each month. More than any other state, Texas has some of the most skilled attorneys, some of the most efficient trial judges, and EDTX has some of the best trial attorneys in the country, period—there are none better at efficiently preparing a complicated case for trial. EDTX and Texas trial attorneys have repeatedly honed their skills in the forges of 10 hour and 12 hour per side trials against some of the best attorneys in the country. As a former active EDTX attorney, Judge Albright should also bring his well-honed his trial skills to bear in the courtroom, no doubt holding attorneys to the same high expectations of professionalism, courtesy, and efficiency that Judge Ward and Judge Gilstrap have and continue to expect.
Ultimately, it is the lead-up to trial rather than the trial itself that ensures a case succeeds. That may seem counter-intuitive, yet tailoring a case for trial in a particular venue is more critical than the favorability of the venue itself. The first rule of persuasion is “know your audience,” a skilled trial attorney will learn how to align his or her case with jurors’ values and how to gain credibility over his or her opponent. In Texas we are fortunate to have skilled attorneys who can quickly communicate complicated concepts to jurors.
It would be a mistake for attorneys to believe that their audience in Waco will be just like their audience in Marshall, but it will not take long for attorneys to learn how to tailor their cases to Waco division residents and give them the same opportunity to reward a plaintiff or defendant. Whether EDTX attorneys, Dallas/Austin/Houston trial attorneys, or renowned Waco attorneys begin appearing more often in Waco, outstanding Texas trial attorneys will continue to faceoff and prevail against some of the country’s top lawyers in some of the nation’s largest lawsuits with one of the most knowledgeable patent judges, and I look forward to the showdown, but this time in a different small Texas town with different Texas jurors.
Image Source: Deposit Photos
Image ID: 88641806
Nov 2, 2015