Texas Two Step: Litigating in Marshall and Tyler, Texas
A while back, I learned an important lesson in a courtroom in Tyler, Texas. A visiting attorney had flown in to represent one side, and right from the start he seemed kind of aggressive. He badgered the witnesses, glared at opposing counsel and scowled at the jury. I think he was trying to play big-city tough. But what he didn’t realize is that this is the opposite of what the good citizens of the Eastern District of Texas (EDTX) want. The jurors in East Texas want lawyers to be polite, to be respectful of witnesses and jury, and to—dare we say it—behave like ladies and gentlemen.
The lawyer ended up losing his case, and to this day I am certain it was partly because of his demeanor. It is not unusual for attorneys to get so wrapped up in their cases they forget about cultural norms. But that does not mean it is OK to do so. Your best bet when trying a case in East Texas is to do as the East Texans do. Never been there before? Use this legal travelogue to get a better sense of how things are done both in and outside of the courtroom along the eastern side of the Lone Star State.
Inside the Courtroom
If you are a patent lawyer (or a paralegal in a firm specializing in patent law), the first thing you have to know is that time is of the essence in these courtrooms. Court calendars are jam-packed, and court staff is adamant about trying cases quickly—usually within a week. Yes, you read that correctly: That’s five days for voir dire, jury selection, opening, closing and presenting all your evidence. In fact, if you have been to trial in one of the EDTX courts, you are all too familiar with the daily announcement by the court of exactly how much time—in hours and minutes, not days—each side has left to completely finish its case.
The fact that you are only given five court days in EDTX as opposed to four weeks in another jurisdiction does not mean that things are simpler. In fact, it usually means that the court day is packed, multiple witnesses are on and off the stand, and, as such, your trial and war room team must be ultra-organized in order not to miss a beat or make a mistake that either wastes time or alienates the jury.
Cramming It All In
How do you handle the compressed time frame? Assume that you have no more than 45 minutes for opening statement (30 is more likely) and your main expert witness might be on the stand for at most three hours. This would be for both the witness’s infringement and validity analysis. The direct examination of most witnesses is one hour—or less. This means you have to find creative ways to elicit the witnesses’ background, so you can quickly move on to the key points. One tip: Rather than using up time narrating your witness’s professional experience, consider scrolling through her CV on screen or creating a few overarching summary slides (education, previous work experience, professional affiliations, etc.). This allows you to quickly prove their expertise without spending 10 precious minutes discussing exactly what they did from 1985 through 1997.
Using these shortcuts won’t just help you save time; they will also help you win favor with the jurors. It is not unusual for every eligible citizen to have served as a juror on one or more intellectual property cases. As a result, EDTX juries have been conditioned by the court to believe that their time is valuable. They expect to be treated with respect. They do not want their time to be wasted. Trust me; these jurors know when you are wasting their time by not being as efficient as you can possibly be.
Minding Your Ps and Qs
As I noted before, acting like a mad dog will work against you in this part of the country since jurors expect attorneys to be polite to one another, to the witnesses and the court personnel. If one attorney is struggling with setting up an easel, the jurors want opposing counsel to step up and help out. If you pull out a package of breath mints, and the jurors see you offering some to opposing counsel, your credibility will rise. Make no mistake: While they know that the attorneys and parties are fighting hard for their respective positions, they believe that all of this can be done in a professional and respectful manner.
Inside the War Room
The expedited trial calendar also means that you should not skimp when it comes to staffing your war room. Since you have to put on your entire case in about three days, each night you will want multiple associates and paralegals around—to write examination outlines, prepare witnesses and file briefs based on what happened in court earlier that day. In fact, since you have about half the amount of time you usually have, you will need twice as many people as you usually have in your war room. In other words, the work load (and your budget) doesn’t decrease; just the time frame does.
Life Outside the Courtroom
Lawyers occasionally joke around about what it is like to spend time in Tyler and Marshall, Texas. Ignore them; the bottom line is that you do have lots of options for lodging, great places to eat and things to see.
The first step to getting to the Eastern District usually requires that you get to Dallas. I figure you got that covered. After that, you have the option of either flying to Marshall or Tyler or renting a car and driving two to two and half hours to your destination. I personally prefer to drive. Texas is big. And empty. There’s hardly any traffic, and, depending on when you arrive in Dallas, driving is often faster.
In Tyler, the Courtyard Marriott is the current hotel of choice. In Marshall, there is a cluster of hotels right off the freeway. All of these hotels have hosted so many trial teams they can pretty much meet your every need (i.e., they won’t think you’re crazy if you ask them to clear a room so you can bring in copy machines or if they see you erecting book shelves in a conference room). Hint: If you want to be sure of getting the rooms you need, call early. Two or more groups of people will be making reservations for every trial. But be sure to ask about, and fully understand, the cancellation policies.
Because your time is so short, you can assume that you won’t be able to go out for lunch and dinner. It is easiest to arrange your staff meals with a catering service or restaurant that delivers. Both courthouses are located right on a town square, and within 100 yards you will find several small restaurants. It’s best to assign the task of organizing food to a staff member; again, that person needs to plan well in advance. The army, as the saying goes, marches on its stomach…and in the EDTX, you do not have time for your army to stop marching.
As you would expect, given their sizes, Tyler and Marshall have a limited number of vendors available to provide trial support. As you would also likely expect, most of those vendors have considerable experience and won’t be surprised by weekend and late-night requests, even when the rest of the town might be sleeping. Moreover, the court clerks in both courthouses are savvy about technology and are very helpful and responsive in the weeks leading up to your arrival and while you are in their courts.
On the other hand, do not forget that Dallas is several hours away; if you need a new piece of equipment or a specialty part (e.g., a replacement projector bulb) you might have to wait half a day (or more) for delivery and, in doing so, pay quite a bit for messenger services. Bring extras of key parts. Alternatively, you can try to find what you need at a superstore like Wal-Mart or Best Buy in either town.
You probably will not have a lull during the trial, but I highly recommend either getting to Texas early or leaving late so you can get a sense of the local culture. Both cities also have plenty of fun things to see and do including a few dance bars where you can learn to line dance and two step as a way of celebrating the end of your trial. Being fast on your feet, after all, is a much valued skill among attorneys in any part of the country.
This article appeared in Law360 on November 8, 2011.
Appeared in Law360
November 08, 2011