Earlier today Judge Albright spoke at a Zoom-hosted “Fireside Chat” sponsored by the Austin Asian American Bar Association. Though if there was actually a fireplace nearby, it didn’t make it on camera. But we digress…
Principal Kat Li of McKool Smith facilitated an engaging and info-packed 45 minutes, which we’ll summarize below. Some of the nuggets should be familiar to longtime Albright-watchers, but there’s something new and useful here for everyone. As a framing device we’ll use the topics chosen by Ms. Li, subject to some light chronological reordering to group common themes.
How the Court manages its workload & role of the Technical Advisor: As always, Judge Albright extended generous recognition to his “great team,” including both his “exceptional law clerks” and EE-PhD-credentialed Technical Advisor Josh Yi (whom Judge Albright said he was “unbelievably blessed to have”). That team does a good job of parceling out responsibilities where they have individual expertise, and “works extremely hard to get me ready” for, e.g., the three-Markman-hearing days that often fill the Court’s Fridays. Judge Albright extolled the value of his team being “able to bounce ideas off each other within the Court family,” as a way to recapture some of the collaborative environment he enjoyed while in private practice—and which can be much harder to come by as a federal judge. Judge Albright also credited Magistrate Judge Manske and his chambers’ clerks for handling many other civil matters. Of particular note going forward, Judge Albright said that he expects the Waco Division to have a second Magistrate Judge position (plus those new chambers’ own law clerks) added “hopefully no later than early next year.”
How counsel can help streamline proceedings: Here Judge Albright spotlighted two issues. First, Judge Albright spoke of the double-edged sword of being available to referee discovery disputes via informal phone/Zoom conferences—though he noted that he believes his availability actually reduces the number of intractable disputes, because lawyers know they can get resolution. With that said, Judge Albright stated that parties bringing discovery disputes would still do well to connect their disputes to the particular facts of the case, rather than simply saying, “We don’t want to.” Second, Judge Albright noted that parties during claim construction would “probably be more successful” to the extent they can “winnow down the number of claim terms,” and not to waste time on terms with well-understood meanings. (“If I were back out there [in private practice], I wouldn’t argue ‘valve.’”)
Successful approaches to oral argument: Judge Albright’s top recommendation: Use fewer PowerPoint slides! The Court has seen laudable reductions as Markman hearings have moved to Zoom, so please keep doing that. No more than 3-4 slides per term is probably the sweet spot. Similarly, focus on the most important issues (key claim terms, etc.). For claim construction hearings, especially in the “20-25%” of instances in which the Court has issued its own construction rather than adopting one of the parties’ proposals, requesting minor modifications to improve the Court’s construction is a likely fruitful avenue. (Though don’t propose modifications that simply return the Court’s construction to your original proposal; that’s not helpful.)
Value of local counsel: Judge Albright concisely stated, “Certainly having someone who I know well and who knows me well…is always beneficial,” especially to the degree it allows a party to advocate via someone who “has built up a reservoir of trust” with Judge Albright. Though Judge Albright also observed that “wonderful national counsel” also often appear in front of him without benefit of a locally based advocate. Judge Albright specifically noted that for purposes of trial, a well-versed lawyer who knows details of the venire and can bring that knowledge to bear during voir dire can be invaluable.
Judge Albright’s Working Group: Much as he’s previously said, Judge Albright described the “initial idea” behind his working group as “involv[ing] people who would be as diverse as possible in terms of the types of clients they represented and the firms they were at,” from “both sides of the ‘v,’” in connection with developing a set of rules that was as fair as possible to all litigants appearing before him. Judge Albright spoke about wanting to emulate the “relative certainty” that the EDTX’s Local Patent Rules provide to litigants with respect to “allow[ing] parties to predict what comes next”—along with “making the lives of the lawyers easier.” Judge Albright stressed that the Working Group is not intended to be a “club,” and that anyone interested in participating should reach out. [Feel free to contact this author if you have questions about where membership inquiries should be directed.] The Working Group is the best forum in which to raise potential tweaks to the Court’s Order Governing Proceedings. As an example, the Court will soon update its OGP to indicate that early production of sales data is intended to be voluntary to facilitate settlement; the prior/current OGP language was merely intended to indicate that such production would not violate the Court’s default pre-Markman discovery stay.
Virtual hearings & trial broadcasts: Again, we’ve heard similar comments before, but Judge Albright was immensely enthusiastic about virtual hearings via Zoom. Among the benefits are decreased expenses and lessened travel burdens on counsel (even for West-Coasters who may be asked to attend a hearing starting at 6 or 7AM); the ability of clients to attend (“It’s important for them to see their lawyers at work”); and the ease of involving more junior lawyers, who might otherwise not be selected to attend an in-person hearing (“For those clients [who are hesitant to give an argument to a junior attorney], I can tell you categorically that the most prepared human on the planet…is the one who’s doing it for the first time”). Judge Albright himself “do[es]n’t know that in most hearings there would be an appreciable difference” between in-person vs. Zoom attendance before him, and he’s had hearings where one party’s in person and one’s remote. As to trials, Judge Albright intends to keep broadcasting all patent trials via Zoom (though still audio-only for non-participants; “I thought I wouldn’t get ahead of the Supreme Court”). The Court encouraged all less-experienced lawyers who want to learn how to try a patent case to watch and learn.
Observations regarding trials: Juries “are paying attention…they’re rapt…engaged, taking notes, and I think…they’re used to sitting with masks on, and used to seeing the lawyers with masks.” The Court actively monitors jurors’ comfort levels with the Court’s COVID-related health precautions, and feedback on attending trial has been “enthusiastic.” (The Court may adjust its practices going forward, as vaccinations continue to roll out.) The Court believes jurors are appropriately giving equivalent weight to witnesses appearing in person as compared to those appearing via Zoom due to necessary personal accommodations. Judge Albright described the absence of bench conferences due to social distancing as “very liberating,” and doesn’t want to go back. “Lawyers in my trials have to raise issues either…at break…or while the jury’s there…the old-fashioned way. They make an objection and I rule on it.”
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And that’s it! All in all, a very informative afternoon. We thank AAABA and Judge Albright for allowing the blog to bring lessons from this event to those not able to attend.