“Nothing ever really changes in Marshall,” says Michael Smith, a name partner at Seibman, Reynolds, Phillips & Smith who has spent most of his life in the former railroad town in the state’s northeast corner. “It has always been a good place to try a lawsuit.”
Patents litigators know that Smith is half right. Once upon a time, something did change in Marshall that made the federal courthouse there — and, ultimately, the entire Eastern District of Texas — a good place to try a certain kind of lawsuit. That something was Judge T. John Ward’s arrival on the federal district court bench. Now, with Ward, 68, set to retire in October, change is again coming to Marshall. But this time, close observers don’t expect such dramatic results.
It would be hard to overstate Ward’s role in making the U.S. district court for the Eastern District of Texas what it is today. The history goes like this: Tobacco-related class actions in the 1990s established east Texas as a plaintiff-friendly venue. Texas Instruments seized on that, suing Hyundai Electronics Industries for patent infringement and winning a $25 million jury verdict in 1999. Ward — a once-and-future trial lawyer who will join his son, T. John “Johnny” Ward, Jr., at Longview firm Ward & Smith upon retiring — was one of Hyundai’s lawyers. Though he lost the case, it stoked an enthusiasm for patent suits that attorneys who appear before him say is obvious. “There’s no question that Judge Ward has a decided interest in patent cases and is highly knowledgeable about patent law,” says Kaye Scholer partner Alan Fisch. In a 2004 interview with sibling publication The National Law Journal, Ward called patent suits “intellectually challenging.”
Named to the federal bench by President Bill Clinton in 1999, Ward, who did not respond to interview requests, was sworn in that September. Even before that, Smith says, local rules governing litigation made Marshall a good venue for patent suits. Those rules were scrapped amid changes to the Federal Rules of Civil Procedure in 2000, but many of their strict discovery provisions — mandatory disclosures, tight deadlines, and caps on the number of depositions, for example — survived in the form of orders issued by individual judges as a way of managing their dockets. Some of Ward’s own rules — adapted in part from the Northern District of California — called for page limits for documents and the use of a chess clock to keep opening and closing arguments concise.
Smith, who has tried about 175 cases before Ward, says that some of the judge’s most significant rules must be learned firsthand: “The biggest Ward rule is that you absolutely don’t violate an order on a motion in limine [a ruling on what evidence may be introduced at trial]. That’s the worst thing you can do in his court.” Second worst? “Have your expert not answer the question that is asked. He won’t let experts evade questions.”
Ward’s rules created a docket where the average time to trial was under two years. When the district’s other judges followed his lead, the surge in infringement suits — fed by a belief that jurors there are pro-plaintiff — was stunning: from 14 in 1999 to a peak of 371 in 2007, according to Smith, who tracks legal developments in the district on his EDTEX blog.
A perhaps predictable legacy of Ward’s tenure is that the speedy docket he created is now so packed that the Marshall express has begun to slow down. In Ward’s own court, time to trial peaked last fall at just over three years, says Smith. By the spring it was down to about two-and-a-half years, still more than twice the time seen in Virginia’s Eastern District and Wisconsin’s Western District, according to research by Stanford Law professor Mark Lemley.
Nonetheless, with 299 new infringement suits filed in the district in 2010, talk that east Texas’s run as a hot venue for patent litigation is over is probably premature. According to Carl Roth of the Roth Law Firm in Marshall, Ward’s efficient approach reflected a long-standing local tradition, and whoever takes his place is likely to stay the course. “I suspect that his successor will follow in his footsteps and adhere to the same judicial policies,” says Roth. “It’s just the way things have always been done in this district, and I believe it will just be business as usual in the future.”