Here are a few stories and announcements from the Chicago IP world:
Hinshaw & Culbertson LLP has launched a new blog: Practical Ediscovery. The blog is written by a team of the firm’s attorney and focuses on practical considerations and approaches for handling issues arising with the production of electronically stored information. Check out Evan Brown’s first post here.
Anne Reed has a post that every patent litigator should read at Deliberation — click here to read it. Reed looked at the issue of ho and hen to introduce technical jargon to juries. Reed makes to important points: 1) trust juror’ intelligence, people like to learn; and 2) despite that, do not teach the jargon both unless and until it is relevant to the jury.
There is an interesting new paper out arguing for a revised venue statute by Sidney Rosenzweig, a visiting fellow at the Progress and Freedom Foundation. Rosenzweig argues for the following rewording of the venue statute:*
Notwithstanding subsection 1391(c) of this title, any civil action for patent infringement may be brought against a corporation only in a judicial district:
(1) where the defendant has its principal place of business or where the defendant is incorporated;
(2) where the defendant has committed a substantial portion of the acts of infringement and has a regular and established physical facility that it controls;
(3) where any defendant has committed a substantial portion of the acts of infringement and has a regular and established physical facility that it controls, if there is no other district in which the action may be brought under subsections (1) or (2); or
(4) where any defendant has its principal place of business, where any defendant is incorporated, where any defendant may be found, or where any defendant has committed acts of infringement, if there is no other district in which the action may be brought under subsections (1), (2) or (3).
* Click here to read the report. And a hat tip to Peter Zura for identifying the paper.

Continue Reading IP Legal News

Here are several blog posts that are worth your time on this Monday morning:
* At Deliberations, Anne Reed warns of six mistakes that can derail voir dire — click here to read the post. Anyone who follows Deliberations knows that when Reed discusses voir dire, everyone should listen.
* The Federal Circuit heard oral argument in Tafas v. Dudas last week. Here is some of the commentary: Patent Baristas; Patently-O; PLI Blog;
* At IP ADR Blog, Victoria Pynchon offers to arbitrate your patent case and says under expedited AAA commercial rules you can get a decision within 45 days of selecting the arbitrator — click here to read the post. Amazing, I may try that in the dispute resolution clause of my next license agreement.
* Anyone who read his 2007 NYC Marathon Blawg Review will not be surprised that Eric Turkewitz’s post-Thanksgiving Blawg Review last week at his New York Personal Injury Law Blog was one of the best of the year — click here to read it.

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Anne Reed has an excellent post at her Deliberations blog about improving the voir dire system based upon Judge Mize’s and Center for Jury Studies director Paula Hannaford-Agor’s new paper, Building a Better Voir Dire — click here to read the post and for a link to a pdf of the article, which is also worth the read. Reed’s post and the article fit well with my recent series of posts on the Seventh Circuit’s American Jury Project report — to read those posts and for a copy of the report, click here (juror questions); here (preliminary jury instructions); here (12 person juries); here (interim statements by counsel)and here (Phase I principles).
Reed nails a huge problem with improving voir dire specifically or the trial process generally — judges and lawyers have different interests. Judges who do lots of trials while facing bulging dockets and populations with little interest in appearing for jury duty often want trials over quickly and efficiently using the smallest jury pool possible. Lawyers want to know as much as possible about as large a pool of jurors as possible. Of course, the more in-depth the voir dire process, the more time it takes. And the process of testing new ideas and improving upon voir dire, or any part of the trial process, also takes time up front, even if it saves time in the long term. But Reed, Mize and Hannaford-Agor identify two resources that help limit the upfront costs for judges — the American Jury Project and the NCSC’s State-of-the-States Survey. Both are incredible resources for judges that want to try new approaches to better serve all trial stakeholders.
Most of all though, it is exhilirating to see important groups like the NCSC and the Seventh Circuit massing their resources to evaluate and improve the trial process. I look forward to covering more efforts like these and to continuing the discussion about how to best try cases in our courts.

Continue Reading The Experts Look at Improving Voir Dire

I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the four Principles studied in Phase Two,* this post looks at the additional three Principles considered only during Phase One: juror questionnaires, deliberation guidance, and trial limits.

The Phase One study showed strong value in having potential jurors answer questionnaires prepared by the court and counsel before voir dire. It streamlined the voir dire process, preserving judicial resources and benefiting jurors who are not comfortable with public speaking. The Commission recommended using questionnaires. For much more on questionnaires and a great library of them, check out Anne Reed’s Deliberations blog – click here for Reed’s questionnaire library.

The Phase One analysis of adding deliberation guidance instructions was inconclusive. Judges in sixteen trials used the following instructions regarding picking a foreperson and deliberating:

A.                 Jury Instruction on the Role of the Presiding Juror:

You are free to deliberate in any way you decide or to select whomever you like as a foreperson. However, I am going to provide some general suggestions on the process to help you get started. When thinking about who should be foreperson, you may want to consider the role that the foreperson usually plays. The foreperson serving as the chairperson during the deliberations should ensure a complete discussion by all jurors who desire to speak before any vote. Each juror should have an opportunity to be heard on every issue and should be encouraged to participate. The foreperson should help facilitate the discussion and make sure everyone has a chance to say what they want to say.


Continue Reading American Jury Project: Questionnaires, Deliberation Guidance and Time Limits

Several stories and updates that are worth a mention, but do not warrant a separate post:
I was going to write a post explaining new Federal Rule of Evidence 502, but Beck & Herrmann at Drug & Device Law beat me to it and did an excellent job (actually, they did not, but their colleague David B. Alden of Jones Day did) — click here to read the post. Every litigator should read FRE 502 for themselves and then read the Drug & Device Law post or some other guide. It is a significant rule, even though it codifies much of what was already the standard practice.
Anne Reed at Deliberations provides a series of links to the most recent edition of The Jury Expert — click here for Reed’s post. If you do not already subscribe to The Jury Expert, do it now. This is a fabulous publication. My favorite article is by Oklahoma State’s Edward Burkley and Darshon Anderson, discussing translating the science of persuasion into the courtroom. Anyone who makes it their business to persuade judges, juries, colleagues or even their spouse should read this article. Much of the article will not be new to anyone who studies the art of persuasion. But at a minimum it is an excellent distilling of important persuasion techniques and everyone will learn or rethink a few things.
Patent Reform is back, or at least Minority Whip Senator Kyl (R-AR) has introduced a new patent reform bill. It is hard to imagine there is much traction in the midst of a presidential election and all of the economic unrest swirling around Washington. But you can read more about the bill at Patent Docs and the 271 Patent Blog.

Continue Reading Northern District & IP Legal News

Here are several posts related to IP litigation that are worth a read:
Anne Reed at Deliberations has a fascinating post discussing a study about the differences between city and suburban or rural juries — click here to read it. The study is focused on criminal cases, but it has value for civil juries as well. It is no surprise to anyone involved in trials across the country that city jurors act differently than suburban or rural jurors. But the real message of Reed’s post is that you have to be careful to draw overly strong conclusions about one factor (juror’s home addresses) from a study of a massive, complex system like a trial. The outcomes are also dependent upon the sophistication of the court as to the subject matter and type of law of the case, the volume of the court’s docket, etc. And there might be more important ways to classify jurors. For example, relative wealth and level of education may be more important factors than where they live. But Reed points out that the real value of the study for lawyers, consultants and litigants is that it makes us think about how juries are influenced and challenges our preconceived notions. Reed challenges us to Reed the study and use it as a springboard, instead of as an answer.
At his The Prior Art blog, Joe Mullin has an update on Scott Harris and his patent portfolio, after his settlement with his former firm, Fish & Richardson — click here for the post. Harris and Memory Control Enterprise recently filed a patent infringement suit in the Northern District involving GPS navigation technology. I will post about those cases as opinions and orders are issued.
Here is a useful white paper on taking cross-cultural depositions from the All Language Alliance. Hat tip to Evan Schaeffer at his Illinois Trial Practice Weblog for the link in a post about depositions using interpreters.

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I have written about the legal issues surrounding social networking sites (click here and here to read those posts). I even did an ALI-ABA teleseminar with Eric Goldman yesterday discussing, among other things, how the Communications Decency Act protects social networking sites against suit based on third party content published on the sites. But Julie Kay’s National Law Journal article yesterday — click here to read it — provided a new angle on the power of social networking sites in the courtroom.
It is no surprise that lawyers, either alone or assisted by jury consultants, research juror backgrounds, and use their research during voir dire and to inform their trial presentations, in particular opening and closing arguments. Of course, internet research has been a cornerstone of those efforts for years. But social networking sites have vastly increased the amount of information available about the average person. Instead of learning someone’s Turkey Trot 5k time and one or two newspaper quotes, you now may be able to see their entire resume on LinkedIn, read about major life events on FaceBook, or even read their personal, daily thoughts on a blog. Kay reports that the information is a valuable fact checking tool, acting as a backstop to information provided in a jury questionnaire.
Additionally, blogs can tell you a lot about a juror, that the juror might not be inclined to disclose in open court or on a questionnaire. To illustrate this point, Kay quotes Anne Reed of Reinhart Boerner Van Deuren — who writes Deliberations, one of my favorite legal blogs. Reed tells the story of “Erin” a relatively prominent Florida blogger who blogged that she was a juror several days after posting that: “I totally understand how innocent people that go to prison turn into hardened criminals . . . .” Reed explains that the lawyers might not have struck Erin for her blogging, but that it was critical information to have in the decisionmaking process:
“You’d hate to leave Erin on your jury without having seen her writing,” said Reed. “A juror’s blog tells you things about the jurors that she probably won’t tell you herself.”
Kay also quotes Holland & Knight litigator Dan Small who raises an important and often overlooked note of caution. Small is concerned that invading jurors’ privacy via internet research could make jurors very uncomfortable and is a substantial invasion for people performing their civic duty:
“You are taking people who are doing their civic duty and didn’t sign up to have their whole life probed,” Small said. “It scares people. They wonder: ‘Are they going to hack into our e-mails next?’ The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy.”
Of course, there is a real question as to whether anything posted on the internet, without password protection or some other privacy protections, can be considered private in anyway. But there is little doubt that knowing their backgrounds were researched and their FaceBook pages were read could make jurors uncomfortable and learning that their backgrounds have been probed could turn jurors against the lawyers or their clients. So, at a minimum, the information needs to be used carefully and discreetly.

Continue Reading The Power & Danger of Researching Social Networking Sites for Voir Dire

Anne Reed has an excellent post at Deliberations identifying the numerous ways that litigators misunderstand jurors. Her post is based upon an article titled To Deal Better With Juries, Stop Thinking Like a Lawyer!, by Patricia Steele of Varinsky Associates — click here for Reed’s post and for a link to a pdf of Steele’s article. Steele provides numerous examples of the way the common legal wisdom about juriors directly opposes jurors’ realities. For example:
It is not the lawyer or her closing that makes the case, but the facts.
Clever legal arguments lose cases, themes of justice, and rights or wrongs win cases.
Voir dire should be used to get to know the jurors, not to teach the case.
Steele’s observations square perfectly with my observations as the son of a trial attorney, a former federal district court law clerk and a practicing lawyer. Each of the misconceptions Steele identifies comes from one of two basic and common misunderstandings:
Trials are stages for lawyers. Wrong. Trials are a stage for the facts and the themes lawyers wrap the facts in. Good facts generally beat good lawyering.
Lawyers understand jurors. Almost always wrong. As most lawyers know, law school is intellectually transformative. After three years of law school (plus years of practice) a lawyer thinks differently. One of the critical tools for a trial attorney is access to non-legal thinking. One way to get it is to learn to strip away the legal framework we have built up and think like a juror. This is hard to do, especially as you are in the whirlwind of a trial or trial preparation. The best lawyers recognize this issue and turn to juror proxies — their assistants, spouses, children, neighbors, friends, baristas or anyone else they know without legal training — to get non-legal perspectives. Of course, consultants, focus groups and mock juries can also provide juror thinking.
Everyone who tries cases, or who aspires to, should go to Reed’s post and download Steele’s article to read and re-read.

Continue Reading Lawyers Do Not Understand Juries

Welcome to the May 2008 Carnival of Trust. For regular Blog readers, this will be a slight departure from the case analysis format you have come to expect. But I promise you the trust-related links will still be valuable reading for IP litigators and IP litigants. And in the spirit of the Carnival, I will now proceed to build your trust in me by following through on that promise.
The Carnival of Trust is a monthly, traveling review of ten of the last month’s best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.
Do you trust me? Jeremiah Owyang at Web Strategy by Jeremiah says you do not , unless you are related to me. But the real point of Owyang’s post and the studies he cites is that people do not trust an unspecified blogger as much as their family or other unspecified news sources. That is not surprising and even shows good judgment. As Anne Reed at the Deliberations blog points out, choosing blogs is about developing trust. You find a few that you like and trust, trust developed by entering that blogger’s conversation and developing confidence in that person’s posts, and based on your trust in those blogs, you begin to find other quality blogs:
I learned the territory one or two blogs at a time, first coming to like and trust a few blogs (and bloggers) and then following their links and blogrolls to others.
Both the upside and downside of blogs is that you cannot develop an audience, or a community, by simply building an attractive, user-friendly site with good search engine optimization (although if you are going to run a law blog, you should do all of those things. People may come once for flash, but return visitors and respect within the blogging community is generated with strong, consistent content.
Kevin O’Keefe of LexBlog pairs up with his able VP of Client Development Kevin McKeown to advise bloggers and their employers, specifically law bloggers but the post applies more broadly, on how they can build trust with each other by devising a thoughtful corporate blogging policy and by meeting legal ethics standards — click here for the post.
In professional services circles, American Airlines’ serial MD-80 groundings was big news. Mark Bonkiewicz at World Class Trust argues that American Airlines, and airlines generally, have destroyed much of the public trust they built over decades of excellent service. And he contends that they have a long road ahead to regain the trust. But as a frequent flier who spent a lot of time during and around the MD-80 groundings on American Airlines flights, I disagree. In my experience, American largely handled cancelled flights and frustrated passengers well. This suggests that trust is subjective, a premise that squares with my personal experience.
Alex Meierhoefer at Leadership and Talent Development for Smart People asks: Is Trust a matter of Perspective? He looks at the “trust equation” and contends that trust should not be subjective, or at least is not subjective if parties in business deals, and presumably in politics as well, communicate openly. The problem with that is assuming open communication assumes trust. Additionally, sometimes unseen factors enter in to the other party’s decision making causing them to take actions that harm trust because of a lack of information. Perfect information and decent actors would guarantee trust, but absent perfect information trust will always be at least partially subjective.
My engineering background does not let me walk away from an equation without some discussion. And the Carnival of Truth’s own Charlie Green provides an excellent post at his Trust Matters blog discussing a version of the trust equation and providing a self-diagnosis tool which outputs a trust quotient (like an IQ score) on a fifteen point scale. Here is the equation the diagnostic is based upon:
Where C is credibility, R is reliability, I is intimacy and S is Self-Orientation. The diagnostic is interesting and the results may surprise you, they did me. Any tool that helps you take an honest look at yourself is a powerful resource for leaders and managers. The more honestly we can look at ourselves, the better we can care for and lead our teams.
Instead of using an equation, George Ambler at The Practice of Leadership asks What is Your Trust Rating? by looking at Robert Hurley’s ten primary trust factors. I like the equation, but the factors get to the same result. And as leaders, it is critical to evaluate how others perceive our trustworthiness. So, use the equation or the factors, but take the time to do it either way.
On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client’s trust during a difficult negotiation: How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter. The last point is a difficult one for lawyers. As a lawyer you generally want to remain focused on the settlement inputs — money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. — but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.
And on a related topic, the Patent Baristas have a great post explaining how biotech companies can get past typical stereotypes, and sometimes realities, of doing deals with university tech transfer offices by, among other things, recognizing the other side’s by treating the other side with respect, and appreciating both their needs and their constraints — in other words, developing their trust.
Ed Moed at Measuring Up looks at the importance and power of building a trusted brand for sales: Build a trusted brand and the possibilities are endless… He was drawn in to a new diner in his local Whole Foods simply by the power the Whole Foods brand holds for him. As someone who grocery shops and then eats breakfast with his son at Whole Foods most Saturday mornings, I can appreciate Moed’s point. If my local Whole Foods opened a restaurant or a diner (we currently make breakfast out of items purchased from the store and eat in a small seating area at the front of the store), I would eat there at my first opportunity. Is your brand strong enough to draw people in that way?

Continue Reading May Carnival of Trust

I enjoyed my first opportunity to host Blawg Review (a weekly review of the best of the legal blog world hosted by a different blog each week) — click here for my injunction-themed review. Having hosted a 2007 review gives me the opportunity to nominate my favorite reviews for the Blawg Review of the year award. Here they are, in chronological order:
#134 NY Personal Injury Law — I am a sucker for running and this was an excellent post on top of that.
#127 Deliberations — One of my favorite blogs. A must read for anyone that deals with juries, or wants to.
#126 Small Business Trends — One of the few reviews not hosted by a law blog, which is a nice change of pace.
#106 Blawg IT — I love running, but motorcycles are too fast for me. That said, this was an excellent review.
#95 AutoMuse — Perhaps it was the years I spent in-house with the auto industry, but I enjoyed the automotive theme.
Finally, this week’s Blawg Review #141 is available across the pond at Charon QC.

Continue Reading Blawg Review of the Year Nominations and Blawg Review #141