Texas Contingency Fee Firm on the Why Congress's Proposed Venue Reform is Just Wrong

A new blog called "Patent Litigation Lawyer" explains why I am wrong on venue reform. Not surprisingly, "Patent Litigation Lawyer" is really a contingency fee law firm located in Texas. In other words, the one class of people with the most to lose from venue reform. The firm, Williams Kherkher, has litigated cases in EDTX recently.

I didn't find their reasoning that persuasive. First, they argue, venue reform is improper because "several of the judges were appointed by George W. Bush, who has made plain his stance against judicial activists." That makes no sense. They try to parlay that reasoning into the statement that there have been no massive settlements or verdicts in EDTX due to the conservative judges, but the data doesn't support this conclusory statement. I dispute anyone who says a $36 (Orion) - $156M (TGIP) verdict isn't massive to open their checkbooks.

Second, they cite the much-repeated stats from Michael Smith that EDTX really isn't that plaintiff friendly because only 2 out of 7 cases tried in 2007 resulted in a plaintiff's verdict. Again, that's not really true. One of those 5 cases that's not being counted as a plaintiff verdict, the TGIP case, was actually a $150M+ verdict. It's verdicts of that size that has defendants scrambling to pass venue laws that make sense - regardless of what the judge does with it on JMOL. The fact is that the historical success rates of plaintiffs in jury trials is still better in EDTX than just about anywhere else in the country.

Third, they argue that having specialized patent courts and judges is a good thing, and the judges there have "an impressive patent pedigree." I don't think there's any doubt that the good judges of EDTX have accumulated a ton of experience through on-the-job learning. But the argument that "we have done it for the past few years and thus it's the right thing to do going forward" just doesn't make sense. Yes, I believe in FRCP 1. But I also believe that other courts are equally capable of following that rule of civil procedure, and if they don't, the local attorneys in those courts will figure a way to make it happen. Look at NDCA. It follows the same patent rules as EDTX, and cases there, among many of the judges, move at a good clip towards trial. There have been some big verdicts there, too. Non-practicing entities sitting on patents susceptible to summary judgment just don't want to be there, because defendants' summary judgment motions of noninfringement and invalidity will actually be considered, at a point well before trial, as opposed to EDTX. And there's the chance of getting some Intel, Cisco, and Google engineers on the jury.

In fact, cases in EDTX are now being scheduled for 30 months out from filing. I can name a dozen districts that are less than that. How exactly is being in support of EDTX being in support of "speedy?" That being said, I can also name a dozen judges in those other districts that I'd enjoy being in front of much less than the EDTX judges!

Also, interestingly, Williams Kherkher has a web page outlining their views on patent reform, here. They advise their clients to hurry up and file their patent infringement cases now, before patent reform is passed. Yes, that would explain the surge.