That Unsettling Feeling
The overwhelming majority of cases settle. What varies is when, how and on what terms they do. Maybe it has to do with a weakening economy, but we're seeing a definite trend for defendants (or more likely their lawyers) to dig in their heels and fight, rather than take the sensible approach of reaching a deal.
I am not really surprised, given that every day I read of another major firm laying off 50 lawyers or, worse yet, shutting its doors. Money spent on lawyers is one of the first things cut when cash is tight, and with fewer big ticket litigation matters available to pay the rent, big firm lawyers have a powerful incentive to turn every case into something major.
How do I know?
I used to be a big firm partner working mostly the defense side and know how it goes.
The standard speech always includes an appeal to "principle" and the need to send a strong message that "we will not be pushed around." As if any plaintiff's lawyer actually takes that into consideration.
There are a lot of questions we consider before taking a case and certainly before filing a complaint. Most important is, does the case have merit? Second, are potential damages sufficient to make it worthwhile? Very important is whether the defendant can actually pay if judgment is obtained? However, one question that NEVER gives us any pause whatsoever is, "will the defendants put up a fight?" Of course they will. That is ALWAYS a possibility, and a company's reputation for defending cases vigorously simply does not enter into the calculation. Facing defense counsel and their defenses is just part of the game.
Having now been on the plaintiff's side for quite some time, I feel somewhat foolish recalling the principled speeches I once gave corporate clients regarding the need to stand up and send a strong message to the plaintiff's bar. In reality, my opponents did not care about reputations, "messages" or the perceived nastiness of defense counsel.
I understand a big firm lawyer's need to hit his numbers and bring in the cash. And fighting cases is what we lawyers do, on both sides. But rational business decisions by clients should be based on more than silly claims about "messages" and "principle" and so forth. You'd think that people smart enough to get rich in the first place would know when their lawyers are blowing smoke.
Again, the overwhelming majority of cases settle, and they usually do so when when clients wake up to where their true interests actually lie.
Houston, We Have A Problem...*
Count me among the latest to question whether the Eastern District of Texas is still THE venue for bringing plaintiff's patent cases. A "Rocket Docket" it ain't.
We've filed a fair number of cases in the Eastern District over the years. Although things used to move with dispatch, in one of our latest, the first available date for a Markman hearing was June 2010. In another case, we are awaiting a Markman ruling following a hearing in April 2007.
And check out this apparently routine order we just received. Basically, it requires asking for permission before filing a whole host of motions and on its face plainly states the measures are needed "Due to the large number of patent cases pending on the Court's docket."
This is all no doubt due to the Eastern District's well deserved reputation as a fair and friendly forum for hearing patent cases. But I suppose there can be too much of a good thing. The backlogs were probably inevitable.
*Yes, I am aware Houston is not actually in the Eastern District. Just couldn't resist the cheap humor.
