Following up on our post last week, here is part 2 of our notes about the District of Delaware Bench and Bar. As we mentioned, these are all without attribution under the Chatham House Rule, and we won't be discussing any specific panels:
Magistrate Judge Tips
- For discovery disputes, judges want to see what the moving party wants, why, and what law or regulation justifies the request.
- The party opposing a discovery dispute should focus on the real reason for opposing the request
- The court appreciates honesty and the parties having some level of restraint in arguing discovery disputes
- Timing of discovery dispute motions is important. The judges may not want to open the door to additional discovery on the eve of the close of fact discovery, for example.
- Meet-and-confers are especially important regarding claim construction motions, as parties often reach oral argument without really understanding the dispute.
- Having more senior counsel on meet-and-confers tends to help resolve the dispute; some judges have contemplated requiring more senior counsel on the meet-and-confer calls.
- If there is a case-dispositive motion that is likely to resolve the case or result in settlement, and the parties agree it should be resolved early, consider seeking a referral to a magistrate judge for just that motion for a fast resolution
- If both parties want to go to trial but the trial gets bumped (e.g., due to a court conflict), the parties can consent to a magistrate judge and potentially keep that trial date
- The Court stopped its mediation program in March, 2022. However, the magistrate judges still mediate some kinds of cases, such as some employment cases.
- Patent case mediations are very burdensome and the court generally is in agreement that they don't make sense.
- The Court has stopped its mediation program. If parties think that a patent mediation truly makes sense, they can ask, but it won't be granted lightly. It doesn't make sense if the defendant is looking for a walkaway
- It may be easier to get a referral for mediation with some district court judges than others
- The Court is open to referring issues to a special master, or possibly a magistrate, upon the parties' request
Jury Tips
- The key witnesses tend to be the inventor and first technical witness for the plaintiff, and the designer of the accused product for the defendant
- For defendants, it can be a trap to have your corporate representative testify but unable to explain why you do not infringe
- Case narrowing is important. Think from day 1 about how to narrow the case.
- Don't let the jury get the idea that your side is too busy to appear in court
- Don't expect deposition designations to sway the jury (they tend to fall asleep)
- It's often a good idea to stick to jury instructions that the judge has used before.
- The best lawyers find a way to make the case interesting
Common Courtroom Mistakes
- Lack of preparation
- Not following the judge's forms (even just those that are on the website)
- Not following the meet-and-confer requirement, particularly for claim construction
- Not checking the Court's preferences at the pretrial conference, for example regarding:
- Approaching witnesses
- Jury binders
- Witness binders
- How to handle impeachment
- When making SJ and motion to dismiss arguments, it benefits the parties to be selective rather than throwing everything in
- In claim construction, if you seek plain meaning, tell the Court what the plain meaning is
- In discovery, problem cases may be referred to a magistrate judge or special master. An example problem case is one that has 3-5 discovery disputes, especially in a short span of time.
- Make sure to address every element of the claim when arguing infringement or invalidity. Leaving out a single element can potentially be grounds for JMOL, even if it wouldn't have been disputed.
That's it! There won't be a part 3. Obviously, we're omitting a lot of information here—we just wanted to hit the highlights.
Finally, there were some legal book recommendations. We looked those up, for anyone who is interested:
- Thomas A. Mauet, Trial Techniques and Trials
- James Willson McElhaney, Trial Notebook (he also has one on Litigation)
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