The Top 10 People You Might See at a Patent Litigation Scheduling Conference in the Eastern District of Texas

by Jackson Walker

Many of you have been there – the scheduling conference in a courtroom in the Eastern District of Texas for the court's patent litigation docket. The purpose of these mass gatherings is, of course, to assemble all the attorneys before the court, assign a date for a Markman hearing and trial, and see if the parties will consent to trial before a United States Magistrate. This is straightforward enough. Nevertheless, at any scheduling conference you are bound to run into one or more of the following types:

1. Mr. or Ms. "Respectful." After the judge has given his strong encouragement to consent to a trial before the United States Magistrate to lighten his load, some attorneys find it difficult to communicate that their clients have not accepted such an invitation. These people state that they "respectfully" do not consent to trial before a magistrate – that is, until someone breaks the mold and simply says they do not consent, in which case the word "respectfully" goes out the window for the rest of the scheduling conference.

2. The "Reader." Generally, the Reader is someone new to the court, or someone who has multiple cases and does not want to get confused as to which case has just been called. Despite the fact that you really only need to give your name, the party you represent and whether you consent to a magistrate or not, the Reader will read from a script to convey this information.

3. The "Hunger Games" Attorney. The Hunger Games Attorney is the one who suggests that all members of a potential joint defense group get in early the day before and assemble for dinner in either Tyler or Marshall to discuss the case. Usually the Hunger Games Attorney is not the one who picks up the tab for dinner.

4. The "Linguist." The Linguist serves as local counsel for multiple entities and wants to make sure that his/her appearance for each Forbes 2000 client is clearly logged in the record, especially if it has some foreign flair. Thus, every "LLC," "Ltd.," "GmBH" and "AG," for each parent, subsidiary, and sibling company, are stated on the record with perfect enunciation and pronunciation. After announcing that each member of this horde of entities is "ready to proceed," the Linguist revels in the opportunity for a second recitation of the various GmBHs while announcing their (differing) positions on consent to a magistrate.

5. The "Vulcan." The Vulcan is an attorney who travels a long distance, convincing his/her client that it's worth the trip just for the attorney to be able to size up the judge. The Vulcan is by definition unfamiliar with the court but, owing to the Vulcan mind-meld technique or other superpowers, is able to discern everything that needs to be known about the judge by watching how the judge assigns dates for trial and Markman hearings.

6. The "Richard Harris." The Richard Harris is the attorney who adds unnecessary theater to his limited lines and overacts during his ten seconds of delivery. This might be accomplished by strolling from one position to another while reciting said lines or by over-the-top elocution.

7. The "Frequent Flyer." The Frequent Flyer travels to East Texas from at least one plane flight away. Even though the client has local counsel within the district, the Frequent Flyer will be present in the courtroom but without a speaking role – somewhat akin to a non-credited role in a movie. The Frequent Flyer's most critical mission is to sign the sign-in sheet so that there will be evidence of actual attendance at the conference. Look for Frequent Flyers more during December scheduling conferences, when the crunch to achieve an airline's elite level mileage program is more acute.

8. The "John Wayne." The John Wayne struts into the scheduling conference with the intention of fully telling everyone how it's going to be. These attorneys tend to suffer the same fate that John Wayne did in Sands of Iwo Jima.

9. The "Teacher's Pet." The Teacher's Pet will get plaudits from the court for announcing that multiple parties have consented to the magistrate judge or, even better, that the matter just has settled.

10. The "Early Bird." This attorney arrives before 9:00 a.m., when the courthouse doors are unlocked, in order to claim the scheduling conference's rarest of commodities: a seat at counsel table. Having secured such prime real estate, the Early Bird will not engage in pleasantries with other attorneys who enter the courtroom, as any such mingling might well be at the expense of the Early Bird's hard-fought territory. The Early Bird can also be identified by the unnecessary nest of notebooks, binders, legal pads and the like that are left conspicuously at the Early Bird's perch at counsel table in the event nature's call cannot be ignored.

*With thanks to John Jackson and Matt Acosta for their contributions.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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