Two stories for your consideration:
A Tale of Mounting Frustration
Over the last couple weeks, I've been tasked with going through the pile of resumes the firm received for various OCI's. Presented with a spreadsheet and 3,000 page pdf of resumes and related ephemera, I diligently set to work ranking the applicants with helpful notes for a second round of review.
At the start of the day, this usually looked something like:
Tier 1, obviously read Plain English For Lawyers and had good grasp of more difficult bluebooking rules, vacationed in Rehoboth as a youth, Likes crabs.
Inevitably, though, as the day wore on, my blood sugar would slowly sink until they looked more like:
Tier 1000, name rhymes with fart, hard pass
This was usually my cue to stop and revise my last couple entries the next day.
A Tale of Rising Spirits
During law school my wife and I would frequently kill a couple hours on a weekend going to tastings at the 100 or so wineries around Ithaca that ranged from "pretty good" to "proof that karma is real and that you were a mosquito in a past life."
One of the rules of a tasting trip is to spend your money fast and early. The farther into the trip you get, the looser the standards. We forgot this rule one summer—returning for a visit after several years—and set out for a 10 winery tour with high spirits.
At the 8th winery, I smelled my glass, thought for a moment, and passed it to my wife.
"what does this smell like to you?"
She sniffed and grimaced, responding, "cat pee?"
"Exactly," I said. "It's not bad otherwise though."
We bought a case, which sits in my basement to this day "aging."
The Legal Implications
I bring this up not (only) to pad the post, but instead to ask if either phenomena can be observed in the Court. To put a finer point on it—is there some correlation between how many times a given judge has decided a motion, and how likely they are to grant it?
I don't ask this question in a vacuum. The Court's recent round of referrals to visiting judges have caused litigants to consider whether they might be better off with a judge sitting in one of the busiest patent courts in the nation, or a visiting judge with a less extensive track record in patent matters (generally speaking, as you'll see below several of the visiting judges have a huge number of prior patent cases). Naturally, there is some value in having more data points on a judge regardless of any substantive effect, but one wonders: am I better off posing my motion to a judge who's seen the like 1,000 times, or 10?
The methodology here was simple. Pick a fairly common issue (I chose 101 motions) and chart the amount of times a judge has dealt with such a motion against the odds that they grant it, based on their 10 most recent opinions (or fewer, if there were less than 10 total). It includes all of our DE judges and magistrate judges, as well as visiting judges Kennelly, Goldberg, and Bryson.
The results are below, in a hideous chart:
Spoiler Alert: there is pretty much no correlation (when I asked excel to give me the R value for the best-fit line it pretty much laughed at me and errored out). It's honestly quite comforting.
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