Patent Law

Help! Your Federal Judges and Settlement Officers

By Les Weinstein, Michael Young, John Leo Wagner, Eric van Ginkel, and Victoria Pynchon

Check out Federal Judges Speak Out On Intellectual Property Litigation at the Guiding Rights Blog.
by Mark VB Partridge.

Mark conveys the advice of three federal court judges:  Virginia Kendall, Rebecca Pallmeyer, and Matthew Kennelly as follows:  

1. Too many exhibits. Focus on what you need to prove your case.

2. Useless discovery. You can get by with less.

3. Lack of focus. Make judgments about what is truly significant. Be cost effective.

4. Assuming that questions mean the judge doesn't understand. Visit court and observe the judge.

5. Missing the forest for the trees. Look at jury instructions to know what you need to prove to win. Draft jury instructions early.

6. Too much hyperbole. Give the facts and the law.

Except for "too many exhibits" (as a federal settlement officer I never get enough) I second all these failures as failures in the settlement conference as well as in the courtroom.

Listen, come at least as prepared to a settlement conference as you do to a motion hearing.  You might actually settle the thing.  The only day that's more important is the one set for trial.

And while I'm at it, here is a list of items your settlement officer could use to assist him/her in diminishing your opponent's expectations of victory.  After that's done (quickly) everyone can move into the necessary distributive bargaining session or to brain-storming interest-based solutions to your IP dispute.  

• charts
• graphs
• statistics
• photographs
• drawings
• schematics
• demonstrative exhibits
•  and your three to six best killer trial exhibits.

If you need discovery, tell your settlement officer what you need during the pre-mediation telephone conference and she/he can attempt to get it for you before the session convenes.

Here's the beauty part of settlement conferences -- there are no rules.  You can ask the settlement officer to help you play it anyway you want.  

Go for it! 

And please. 

Help me help you.  (see my federal settlement officer profile here!)

Full post as published by IP ADR Blog on March 23, 2008 (boomark / email).