Here's a scenario that can happen in a patent case: The patentee serves an opening expert report alleging infringement. Your expert responds, detailing every reason why the design documents show non-infringment. The patentee then serves a reply expert report, citing new documents that it says show infringement.
What do you do now? There are at least four answers: (1) move for leave to serve a sur-reply report to address the new docs; (2) just serve a sur-reply report, without leave, and fight the inevitable motion to strike; (3) skip the report but have the expert be prepared to discuss the new papers at deposition, and hope plaintiff asks; or (4) just plan to address the new …
Welcom to sunny Wilmington, DE, home of the nation's most-covered criminal trial (of this week)Andrew Russell, CC BY 2.0
On Friday, after we wrote our post about it, the Court granted the Press Coalition's motion to intervene and adjusted the voir dire procedures for today's jury selection in the Hunter Biden case, United States v. Robert Hunter Biden, C.A. No. 23-61 (D. Del.).
The Court modified the procedures so that the jury pool will be moved out of the room to make space for the press to attend in person during the …
On one level, it seems kind of silly to devote this much attention to the question of whether the people on your team can browse their phones during a hearing. But on another level, it's important and impactful—particularly for trials, it's essential that the team members who are actually doing the work can communicate, pull up exhibits, take notes, and so on. …
"That's Jim. He's been like that since he forgot to mention our fifth non-infringement argument in the JMOL after he was up until 4am doing exhibit objections. Turns out that's the one we needed to preserve."Sabina Music Rich, Unsplash
Rule 50(a) motions are truly the stuff of nightmares. If you are unfamiliar (experienced trial attorneys can skip the next two paragraphs), almost all patent cases involve post-trial briefing, where the losing side seeks judgment as a matter of law on the basis that no reasonably jury could find for the opposing party, even though that's exactly what the jury did.
Post-trial JMOL motions are not throwaway motions. Parties actually win them. And if you don't win your post-trial Rule 50(b) motion, what do you do? Appeal and try again, based on the arguments you preserved in that motion. These motions are critically important—albeit, only if you lose at trial.
But the post-trial Rule 50(b) motion for judgment as a matter of law is actually a renewed motion. To include an issue in your Rule 50(b) motion, you have to first make a 50(a) motion on the issue, and that motion must be made before the case is submitted to the jury. Otherwise, the issue is waived for post-trial briefing.
The problem, of course, is that you have to make your Rule 50(a) motion at the exact moment you are most stressed and concerned about actually winning the trial, when the motion feels like a giant distraction. And you have to do it knowing that you will almost certainly lose the 50(a) motion. The point is to preserve the arguments, not to win.
Trial teams handle this many different ways, but the most common seems to boil down to ...
Juror questionnaires are rarely a sure thing. These are questionnaires that jury services sends to jurors called for service. The answers are then provided to the parties shortly before trial. Parties like them because they aid in jury selection, but the Court often raises concerns—although they do go out in some cases.
Judge Hall last week rejected a joint request for a jury questionnaire, noting that it would largely overlap with regular voir dire questions:
ORAL ORDER: Having reviewed the parties' joint letter regarding their request to send out a juror questionnaire (D.I. 522 ), IT IS ORDERED THAT the request is DENIED. The Court does not see a reason to burden the prospective …
Once you stop groaning, you can use this image of "sealing the courtroom" to help you remember to move to seal next time.AI-Generated, displayed with permission
Most filings in the District of Delaware can be made under seal without a motion. The Court requires a motion to seal certain things, however, including hearing transcripts—and the burden on those motions can be high.
I've noticed that out-of-town counsel sometimes forgets just how involved it is to file a motion to seal. It's not a form motion that you can draft up quickly. It's a substantive filing, that also requires a meet-and-confer, and that is best supported by a client declaration.
Visiting Judge Wolson, of the Eastern District of Pennsylvania, reminded …
After reading the decision in Nate's post yesterday, it occurred to me that we haven't addressed a common question in cases in the District of Delaware: When will the Court decide the parties' summary judgment motions?
This is a question that comes up a lot. I think that sometimes, in clients' minds, summary judgment motions are something that is resolved quickly. The parties brief their motions, the Court immediately turns to them, and then an opinion should come out in a week or two. Right?
No. That's not true in any U.S. district court I've practiced in, and the District of Delaware is no different. The Court is extremely hardworking but also overwhelmingly busy.
Words to live by when thinking about whether you need to go to the Court on your nth dispute this week.George Pagan III, Unsplash
It's easy, especially at trial or in the lead-up to trial, to feel like you need to bring every dispute to the Court. The stakes in patent cases tend to be high, clients want to see progress, and sometimes every little dispute ends up feeling critical (particularly if the outcome impacts your trial plans).
Beyond that, sometimes more junior associates are tasked with handling disputes as trial approaches—and may be given the implicit authority to raise disputes, but not to resolve them. Shockingly, disputes can then multiply pretty quickly.
Pictured: The poor associate, who writes the briefs, carts the boxes, and dutifully passes polite notes up as the partner mangles the argumentAI-Generated
One question I've seen from time to time is "what should we bring to the hearing?" Not "how should we prepare," but what physical stuff should litigators bring on the day of a hearing or oral argument?
I thought it would be useful to post a checklist—both for you, our readers, and so that I can send it around in response to future questions.
The checklist below should be considered ideas for what to bring. Practiced litigators undoubtedly already have their own systems, and every hearing is different. You should not bring everything below to every hearing. This list is instead meant as a last-minute, "I'm about to head out the door, is there anything else I should bring?" checklist to spark ideas.
Note that this is geared towards oral argument in patent cases in the District of Delaware, but much of it is applicable to other kinds of hearings ...
"I knew we forgot something..."AI-Generated, displayed with permission
Yesterday Judge Williams issued an oral order in Board of Regents, The University of Texas System v. Boston Scientific Corporation, C.A. No. 18-392-GBW (D. Del.) addressing a dispute about whether plaintiffs could offer evidence of copying or other secondary considerations after they failed to disclose those argument until just before trial.
In a lengthy oral order, Judge Williams held that they had waited too long and are now precluded from offering evidence of copying or certain other secondary considerations.
According to the Court, plaintiff had failed to disclose its secondary considerations arguments despite numerous opportunities:
ORAL ORDER: . . . Plaintiff had several prior opportunities to advise [defendant] …
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