Editor’s note: On May 1, the Texas Lawyer editorial department hosted a roundtable discussion in Dallas, "Patent Law: Best Practices As Seen From The Bench." Panelists included U.S. District Judge Rodney Gilstrap, and U.S. Magistrate Judge Roy Payne, both of the Eastern District of Texas, and U.S. District Judges Barbara Lynn and Reed O’Connor of the Northern District of Texas. This is the second part of the discussion. The judges’ discussion covered joinder and multi-defendant cases, damage awards, Markman hearings, and best and worst moments in courtroom advocacy. It has been edited for length and style. [See the first part of the discussion, "Judges Discuss Best Practices in Patent Law."]
John Council, senior reporter, Texas Lawyer, Dallas: OK. Judge Payne, I want to talk about joinder and multi-defendant cases. Are you making dispositive rulings in multi-defendant cases early in the litigation? And what the heck do you do if you have got a multi-defendant case that is pending in your court and a companion case is pending in another jurisdiction?
U.S. Magistrate Judge Roy Payne, Eastern District of Texas, Marshall: You know, I know some of the judges in the district have coordinated with the judges in other courts as Judge Lynn referred to. I haven’t had an occasion to do that yet. So, I — it’s something I would certainly be open to. It’s not a natural thing. I think most trial judges are not used to trying to coordinate with judges in other courts, but, obviously, there could be an advantage in doing it. And as far as the dispositive motions go, generally speaking, the most serious ones don’t come up early in litigation. But, you know, we do try and address them as early as we can, but frankly most of them get decided later in the litigation and not earlier.
Council: Judge Gilstrap, I almost guarantee this has happened to you many times: multi-defendant case, something else is pending in another jurisdiction. Who makes the first call on a dispositive motion and do you call up a judge in another jurisdiction and go, ". . . [m]y case is in this posture, who goes first?"
U.S. District Judge Rodney Gilstrap, Eastern District of Texas, Marshall: I have done that, and I don’t hesitate to talk to other judges, and I don’t know any judges that don’t hesitate to talk to me, as well. So, there is a lot of that communication, I think, that goes on where it’s warranted. The biggest thing I worry about is inconsistent constructions on Markman. And where you have got two cases on a similar track in different parts of the country and you’re getting close to a Markman hearing, you don’t want to come out with yours on Wednesday and they come out with theirs on Thursday. And there are some issues of coordination. It’s also come up where you’ve got cases that are clearly more conveniently postured in another venue and when does that case transfer? Judge Davis in our district likes to hold the cases post-Markman, before they go, and I know that there have been consultations with the transferring court [on] who is going to get it. "Do you want me to go ahead and rule on Markman and send it to you? Do you want me to hold up and send it to you now and let you take the Markman?" There is a fair amount of coordination, and it’s all around the basic premise of: we don’t want to waste each other’s time. We want to be conservative with the resources that that court and this court has, and I think that’s entirely appropriate.
Council: Excellent. OK. Judge O’Connor, I would love your opinion on how Dallas juries view damages in patent cases from what you have seen. Are they a hard sell on infringement and . . . in awarding large damages?
U.S. District Judge Reed O’Connor, Northern District of Texas, Dallas: Well, I’ve only had the one, and so I only have that experience to draw from, but I’ve heard the two verdicts; one in Wichita Falls and one in Dallas, and the Wichita Falls verdict was . . . five times less than the one in Dallas. And so, I guess, on that limited sample size, it appears that the Dallas — you know, maybe an apples-to-oranges comparison to different patent claims. Of course the plaintiffs’ lawyers in Wichita Falls cases are not very personable and so that could play a role as well.
Council: News there.
O’Connor: I’m kidding. Just kidding. Trying to spice it up and wake you up a little bit. . . . But, no, anyway, so the Dallas jurors seem very receptive both to the infringement argument and the request for damages. I can’t recall now at the top of my head in the Dallas case what the total request was to the jury, but I seem to recall it was less than what the Summit Six had asked for, but off the top of my head I can’t tell you. I can remember they wanted 29 cent royalty, but I can’t remember what that calculated to, but the award was $15 million, . . . but it was less than what they wanted. I had a joinder issue in Wichita Falls and spinoff from Lighting Ballast, and they — the plaintiffs had joined other defendants, and one of the other defendants had moved to . . . sever and asked to use the spirit of the Patent Reform Act even though — even if I did not apply the Patent Reform Act retroactively, which I did not apply it retroactively, and I think that’s correct or has proven to be correct. But I did like [what] Judge Lynn did — I didn’t know that she had done it, but . . . they wanted it sent to Fort Worth because of the connections. And my view was, I would go sit in Fort Worth and hear the case in Fort Worth so they would have the Fort Worth jury because that’s ultimately what you give. Because when you hear the hearings anywhere for the most part, and I think it’s similar to what Judge Lynn talked about with Judge Rakoff, and what Judge Gilstrap talked about and [what] Judge Davis talked about and Judge Payne [talked] about coordinating. You know, at that point, . . . if I were to have granted the motion and sent it to, in this case, Fort Worth that was in this district . . . I would be, in effect, asking Judge McBryde or Judge Means to pick up this case after I have already done all of this and tried it. [T]o start over at the beginning . . . [doesn't seem like] the collegial thing to do. So, I followed Judge Lynn’s pattern and would have sat in Fort Worth to hear it. It settled, so that became moot. But I think that idea, not worrying about inconsistencies and then not imposing unnecessarily on someone else is a big concern.
Council: Judge Lynn, you mentioned this earlier. You think maybe that folks are still sending their cases to [the] Eastern District because of the juries. What would you tell the audience — maybe, something they don’t know about Dallas juries? You see them every day or see them often.
U.S. District Judge Barbara Lynn, Northern District of Texas, Dallas: Well, you know, at SMU a couple of years ago at the program that they do regularly on the litigation in the Eastern District, there was some statistics there, and they don’t bear out the conclusion that a lot of plaintiffs’ lawyers think that those verdicts are disproportionately high in the Eastern District. I can’t speak to it because I think our numbers are too low to draw any logical comparison. I think the Eastern District has so many more verdicts in patent cases than we do that it’s dangerous to draw a parallel. I mean, I think we have very good and reasonable juries in the Northern District, and I don’t think anybody should be afraid of them. And I think plaintiffs can feel like they’re going to get a fair trial in Dallas. But in terms of the likelihood that the dollars are going to be higher in the Eastern District, which is the perception, I don’t have enough statistics to draw a conclusion about that. I would like to make just one comment about this technical advisor issue, if I may.
Lynn: I have used a technical advisor in only one case. I would not be reluctant at all to do that again. This was a case where I couldn’t even talk to my law clerk because I didn’t have a clue what they were talking about. I mean, not a clue. I couldn’t even read it. It had all kinds of symbols that I didn’t recognize, and I had to know Latin and Greek and so forth, so I had to have help. I mean, it was just a necessity, and I found it to be very useful. Now, I did ask the lawyers to make suggestions. I don’t know, Rodney, how you all do that. But in my case, I asked the lawyers to make suggestions. Obviously, I would hope that they would agree. Of course, they did not agree. So, each side was touting the person that had the most-advanced degrees, and I picked the person that teaches undergraduates because I wanted the person that could talk to me. And so, I was looking for people that had teaching awards for teaching first-year college students who were more advanced than me. So, you know, I think if you’re in the situation where the judge does ask you for a technical advisor, try to think of the matter from the judge’s perspective and who’s going to be the most persuasive kind of teacher for the judge. Because from my perspective, I don’t do this routinely, and when I do it, I’m really looking for good instruction. So, the guy that may have the best CV may be the worst teacher among the group of potential candidates.
Council: I think you’re underselling your intellect, but that’s just me.
Lynn: I’m not underselling my intellect. . . . I’m probably overselling my seat-of-the-pants knowledge in technical matters, which is none.
Council: All right. Last round of questions, and I’m going to turn this over to the audience and see what they have for you. Judge Lynn, what is the most marvelous thing you have ever seen a lawyer do in a patent case?
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Lynn: Gee, there are a lot of terms that I’ve used to refer to my patent cases, and marvelous is — (Laughter.) . . . Of the most marvelous thing. . . . I love patent cases because the lawyers are very good. I mean, the lawyers are very skilled, very knowledgeable. It’s bet-the-ranch litigation. There is no expense spared to razzle and dazzle everybody, and, you know, the best lawyers are the ones who can speak English. And when there is real communication going on between lawyers and me and the jury, that is a sight to behold, whether it’s a patent case or not. That is, in fact, a marvelous thing. Because that gives advocates the opportunity to do what they do, which is to convince somebody, particularly in an area that doesn’t come naturally to the factfinder and/or the law finders. So, I think that lawyers — and, you know, this has evolved. . . . [T]oward the end of my career as a lawyer in the last five years before I went on the bench, I was a patent lawyer, and I came to that, really, teaming up with engineers because as I’ve told you, you know, several times, I don’t have any engineering experience. But, I was a pretty good trial lawyer. So my skills melded with their knowledge made for an effective presentation. Now, we see lawyers who are engineers who are also excellent trial lawyers, and that is a wonderful thing. It’s all about communication, and the lawyers who are ineffective are all caught up in the technology and they’re talking to each other, not talking to the jury. I have allowed interim summations, for example. The first time I ever did it, I called the lawyers up to the bench, and I said, "Apparently you do not see the fog in the room. There is a giant fog cloud over there. The jury doesn’t have a clue what y’all are talking about. I understand what you are talking about. You two understand it, but they don’t have a clue. And unless the plaintiff convinces these people, you might as well walk out of here now." So, I gave them an interim summation. And I have seen a good evolution in this where people are communicating with the jurors, but the most marvelous thing I think I can say is — and this isn’t just in one case — where I have had very skilled advocates who have communicated well with the factfinder.
Council: Let me ask you this: You have got this wonderful communication going on between the lawyers, you and the jury; would having jurors take notes during the middle of a patent trial mess that up, or is that OK? I mean, are you OK with jurors taking notes or —
Lynn: Well, I’m personally a believer in trying out cutting-edge ideas that I think make sense. So, there’s probably no good idea that I would not consider. And I always have jurors take notes. I have them taking notes in every case. I have a questionnaire . . . that I use in voir dire in patent cases. . . . I use that in every case. . . . I don’t think most of our colleagues use questionnaires routinely in cases, but I use them in every case so lawyers know a lot about their jury pool before they begin voir dire. And I let them take notes, and I let them ask questions. I do it in a way that limits the knowledge of the lawyers as to who’s asking the question because I don’t want you pitching your case to a particular juror. But, I’m up for all of those cutting edge ideas, so I would suggest that if you had some idea that’s unusual and you’re in my court, ask me. I might actually do it.
Council: All right. Judge O’Connor, what is the best move you have seen a lawyer make in a complicated case that you have heard?
O’Connor: In a — well, I was going to say in a patent case, in the Lighting Ballast case, you know, it involved lighting ballast, a ballast for light. And . . . under the old ballast, if there was a broken light or a problem with the light, . . . the risk was the ballast would overheat, catch fire or people would touch it, they would burn themselves very badly. And so, the plaintiffs had one, had a demonstration set up and they had the old system set — my memory is they had the old system set up . . . which makes the ballast very hot. And one of the other witnesses or lawyers walked over close [to] it, and they sort of jumped out, and said, "Don’t touch this ballast, you’ll get burned." So they showed how, you know, how dangerous it was and the old way and how important the new invention was. . . . I allow questionnaires, but I ask the parties to come up with an agreed questionnaire. And then the only condition that I ask before agreeing to it is that . . . once the parties are done with voir dire and the questionnaires, that they agree that I can destroy their questionnaires, which means if they have a Batson challenge or other objection to the panel that they have to make, [it] preserve[s] their record by dictating their objection or responses or whatever it is into the record, which includes the questionnaire. If you had something from the questionnaire that supports your strike or that you want to use to oppose your strike, you have to dictate that into the record because what I like to do is to tell the jury and the prospective jurors that the questionnaires are very helpful to the voir dire process . . . , but don’t be worried about any personal information that you have put into this questionnaire because we’re going to destroy it after the voir dire is over. And I think that helps alleviate any concerns that they may have going into the process about disclosing —
Council: Have you ever had a Batson challenge in a civil case?
Council: You have?
O’Connor: I can’t recall, but I’ve prepared for it.
Council: OK. Well, good. Just curious. All right. Judge Gilstrap, what is the worst move you have seen a lawyer make in a patent case? I’m leaving that one for you.
Gilstrap: I was all ready to answer what was the best move.
Council: That’s why I change gears.
Gilstrap: Worst move. Well, I’m going to give you the best move anyway.
Council: OK. All right.
Gilstrap: I tried a patent case, and I won’t identify the players so everybody in the room can claim to their colleagues it really was them, but the plaintiff’s lawyer cross-examined defendants’ infringement expert . . . eight times in the cross-examination — I wrote them down — the expert said, "I made it up, I made it up, I made it up." And it was the most brilliant cross-examination I’ve ever seen. And that plays into Judge Lynn’s comment, whether it’s the worst thing or whether it’s the best thing. It’s not about engineering. It’s not about technology. It’s about oral advocacy and a good trial lawyer in a courtroom who knows how to handle a witness. That’s really what makes my job so much fun, given the number of patent cases we have. It’s not the scintillating thrill of the technology. It’s the quality of the lawyers, and the worst case, the most boring case is fine if you have got exceptional lawyers. And unfortunately, the converse of that’s true. The most exciting cases [are] not very much fun if you have bad lawyers. And we get, by and large, exceptional lawyers. Many of them are in this room, many of them from other parts of the country, and that — that really covers a multitude of sins. I would like to touch on what Judge O’Connor mentioned and Judge Lynn as well. We routinely allow parties, particularly in patent cases, to use questionnaires. I review them. I will routinely strike something that I think is too personal because I think it will be off-putting to the panel members when they get it. I require that it go out with a summons, so don’t come in a week before trial and ask to submit a jury questionnaire. It goes out with a summons, and they send it back before they appear and they are told, just like with Judge O’Connor, it is not going to be kept. It’s not going to be copied. It’s going to be destroyed. Don’t worry about any of your personal information. And that goes a long way of getting people to open up. . . . I firmly believe — this may be old-school, but many, many cases are won or lost once the jury is set in the box, depending on who you get on the jury. And I think use of the questionnaire is a valuable tool, and I will allow it, but we do — the court provides oversight. It’s not going to be a 15-page questionnaire. Maybe two, two and a half, and it’s not going to be anything that I view as overly personal or off-putting, but within those parameters, there is a lot of good, useful information you can get before the panel ever shows up in your courtroom.
Council: Something you want to say, Judge Lynn?
Lynn: Well, I was just going to say, I have not done this in a patent case, although I would do it in a patent case. I have sent out, in three very long cases that I’ve had — two criminal and one civil case. I have sent the questionnaires in advance, and then I’ve put them in a secure website for the lawyers to look at them. And then they’ve made strikes in advance because I have very long trials, and I didn’t want to bring a lot of people down who couldn’t serve, and there were potentials for bias that should have been weeded out in advance. So, I did that in advance, and I think the lawyers really appreciated the opportunity to look at these things in this way. It saved a lot of paper. I had restrictions on who could look at it. There were court orders about who could have access. There were secured passwords. There was a little regimen of trying to make that opportunity available. And let me just say that on the questionnaires, I keep a set of them, and I tell the jurors that they’re being kept under seal with the court order that I signed that says no one can access these without an order of the court. . . . I wrote an article on questionnaires in trial, and I’m worried about whether I can destroy them, so I don’t. I think the lawyers agree, it’s probably fine, but I have decided I needed to keep one set. Nobody has ever tried to access those, but I do have the set under seal.
Council: OK. Last question. Judge Payne, I am going to leave this up to you. Best or worst thing you have seen a patent lawyer do in your courtroom.
Payne: You know, one thing I’ll mention, in addition to the good lawyers, one of the distinguishing features of these patent cases is the quality of the expert witnesses that you sometimes get. We have had some who are leaders in their field, and I think that finding an expert who can at least pass himself off as not testifying for a living is a big advantage. Some of the expert witnesses we’ve got are just outstanding, and I hear the juries talking about their perceptions of the experts afterwards very often. . . . [O]bviously, I think the lawyers know this, but it really is worth the effort to find the right expert for the case. In terms of what lawyers do in the courtroom, the best thing I see is time spent on cross-examination. I do think that if you don’t effectively cross-examine a witness, they — they are so much stronger to the jury. The worst thing I see, frankly, is the lack of rehabilitation on redirect I see. Very often I’m amazed. After a good cross-examination, I’ll basically see no questions or very few questions, and I think it’s extremely important. I mean, sometimes the juries don’t understand the effect of all the questions, but they can definitely tell the effect of the body language, and, you know, you have to leave on a high note . . . with your witness. And I — so I think that there should never be a case where you don’t have some substantial redirect after a good cross-exam. Anyway, that’s all.
Council: Great. We have about 15 minutes left. Does anybody have a question for the panel or any of the panelists? And I admonish you don’t ask about any case or anything that’s specifically will be coming before the judge that you may ask a question of. So, who wants to ask a question?
Audience Member: Judge Lynn, how long are you allowing for Markman hearings?
Lynn: They’re either a day or half a day.
Council: Have you set time limits on cases as well?
Lynn: Yes. But I don’t have a rigid number of hours. Twenty-five [is the] ballpark.
Gilstrap: Total or per side?
Lynn: I’ve done it — I’ve done it 25 hour total, and I’ve done it 25 hour to the side, depending on the complexity of the case. That’s — 25 hours to the side is a really long case. I mean, when you do — when you do the calculations as a judge, it is practically impossible in a regular day to get in more than five-and-a-half hours of testimony, and that is a stretch. I know it doesn’t — you think you can get more, but you just can’t. . . . [T]he jurors are late coming back from lunch. There is a line in security. The computer doesn’t work. I mean, there is all kinds of things that get in the way. An injunction walks in the door. You know, things happen. And try, as I might, the most I’ve ever gotten out of a real day is six-and-a-half hours, and at the end of the day, everybody was just wiped out. So, it’s just very difficult. So, that’s a long, long trial. It’d be very unusual to give a 50-hour trial.
Council: David Skeels, yes, sir.
Audience Member: How about tips on the charge conferences; drafting, draft jury charge, anything you would recommend in terms of things you have seen done well or not so well in that regard?
O’Connor: I stole from Judge McBryde his jury charge process so those of you who appear in Fort Worth quite a bit, and in Judge McBryde’s court might — at least he does in the criminal side. I don’t know if he does this in the civil side, but in the criminal side I’ve adopted it. I require the parties to meet and to put together a single document that is the court’s charge, and then within that document, the language that they agreed on is just in regular format, and I can’t remember exactly how I break it up. One side bolds it and one side underlines it so you find out the disputed language. And then you, either there or in a footnote, annotate the support for or against the disputed language. And in my view, that is helpful. I have found it helpful over the last couple of years because you’re drawn to the language that is in dispute, and then the source and support for or against that language is right there and you can go to the cases or the patterns that support it, and you can read about those cases and find out how you should apply it in this instance. And so I — that’s what I do. I’m sure you know that, Mr. [David] Skeels. That’s what I do, and . . . I find that helpful because you’re drawing the issue in one place. The issue is joined in one place with the support for and against it, and you can just concentrate on that before you go to something else. And then, of course, at the jury charge conference, in my view, it makes it more productive. At least it makes it more productive for me.
Council: Anyone else? Yes, sir?
Audience Member: I’m curious about the panel’s view on limiting claims in patent cases. That’s a pretty hot topic now, and I know there is a lot of tension about what happens to those claims and the timing of when you do it. Obviously, you don’t want the court to have to take up a lot of claims on Markman, that would then get winnowed down and do unnecessary work, but at the same time if the claims that are limited out or distinguished by res judicata, you don’t want to make the plaintiff pick too soon or pick blind. And I was curious about the panel’s views on the timing of that and what happens to the claims that aren’t picked and what are some of the numbers that you all feel comfortable with in terms of going forward through Markman and down the line in a summary judgment with?
Gilstrap: I’ll take a stab at that.
O’Connor: Yeah. Because I’m interested in hearing the answer.
Gilstrap: You know, I agree, . . . and there is a certain amount of buzz about this topic at present. Everybody has to address it from their own personal vantage point. I’m reluctant to manhandle a party’s case and say, "OK, here is an arbitrary number. This is it." I have threatened to do it, if you don’t do it through the meet and confer process, and I’ve sent parties back to narrow the scope a couple of times. And I find with a gentle nudge from the court, the threat, ultimately, of, I’ll do it arbitrarily for you, if you can’t do it, they get it done. And I would much rather have the parties do it than the court do it. It gets you to the same place. And, you know, much like Judge Lynn, I uniformly set time limits on trials. I’ve never set one 25 hours a side. I think the most I’ve ever set is 15 hours a side, and consequently there are cases where there are patents-in-suit that are not going to be able to be properly tried as a group, and they are going to need to drop some of their patents. And I have pretty much — depending on all of the factors and the timing, but by and large, I view it as if parties can’t litigate all the patents-in-suit because of, in large part, the time limits the court’s imposed on them — and that’s a problem not of their own making. And I’m generally . . . receptive to a motion to sever out certain patents-in-suit and allow them not to be lost permanently, but to be set off to the side and go forward with the most pressing patents and the attached claims. I think you get there. I’m just not comfortable in . . . unilaterally stepping in and taking a knife and cutting this off and saying this is what’s left. But you do have to have a workable number of patents and claims, and you do have to — you know, it’s a strategic mistake for a plaintiff to go to trial with more than they can possibly get in within the time limits, and then they end up doing a poor job on everything. And I think good lawyers know that. And certainly, if I’m convinced that’s what’s coming with the time limits I have set and the number of patents-in-suit and the associated claims, that this is too big of a peg to get through this size hole, then I will actively try to move the parties toward taking care of that, but I would rather the parties do it. They know their suit better than I do. There is always the risk of unintended consequences if the court does it unilaterally, but I’m not going to let you stay there if I am convinced there is too much to get done in the time I have set. So, that’s generally my approach to it.
Payne: And, I agree that it’s problematic to just arbitrarily limit the number of claims, the number of terms that we are going to interpret. I think the way we handle that is just by limiting the amount of time that you have in making the lawyers prioritize. For instance, I know we’ve had cases where there have been too many terms coming up for construction, and we just tell each side that, "We’ll take your ten most important terms, we’ll take those up at this point." We’ll limit the page numbers, limit the time. You know, typically our Markmans are three hours. And we find that once we interpret those, that, you know, the rest of the claims sort of work themselves out. And the same thing with trial. We set firm time limits, and the lawyers know what they can and can’t present to a jury within the time that’s allotted, and those things tend to work out that way, and the lawyers are the ones making the decisions about how to present the case as opposed to us saying which are in and which aren’t.
Gilstrap: Yeah, and I do the same thing on Markman as well, and I had a Markman yesterday that there were 15 disputed terms. I had set a three-hour limit on the argument, and I ended up sitting down with the lawyers and saying, "I’m concerned we can get adequate argument on all these terms in three hours. So pick five that you want me to decide on the papers and pick ten that you want to spend your time arguing today on." I’d rather let the lawyers prioritize and value what they think is the most pressing. Because I take up indefinite [terms] at the Markman hearing, and there are claims that live or die at the Markman hearing, not just whether they are construed or it’s a plain, ordinary meaning applied. So, I would rather have the lawyers do it, but if they don’t do it, be prepared to get pushed to do it.
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Audience Member: What’s the one thing the lawyers in patent cases can do to make your job easier?
Lynn: Well, there is an undue amount of contentiousness. . . . I was a trial lawyer so I get that these are heated matters, but there really is just an undue amount of squabbling about things that don’t matter. And it happens in virtually every case I have. And it gives you — as the judge, it just gives you heartburn. So, there is a line between vigorous advocacy and just spiteful meanness, which I see a lot of and, you know, I have to call halt to it and I find it annoying and disappointing. So, I think lawyers, patent lawyers, should try harder to get along better because what made my job as a lawyer — one of the things that made my job as a lawyer a lot of fun was that I could kick Doug Colley’s butt in court and then go out and have a drink with him afterwards. So — or he could kick mine, to be fair. . . . I really harken back to the old days — and this really was true when I started practicing — that lawyers really enjoyed each other’s company, and it didn’t matter if you had a vigorous contest between your clients. That wasn’t personal to you. And it’s become too personal in too many cases, and I wish that were not so.
Gilstrap: Let me chime in on that, if I can for just a second, and I adopt everything Judge Lynn has said. One thing I see that I wish weren’t this way, I remember an earlier time when lawyers knew where the line was, and they self-regulated to a certain extent and they didn’t ask for things they knew there was no basis for them to have. And now the line seems to be gone, and the only gatekeeper is the judge, and both sides ask for everything they can ask for knowing full well that a good bit of what they’re asking for is not supportable or warranted. And it’s not what should you get. It’s what can I get, whether it’s right or wrong, and that’s disconcerting to me. It takes a lot of time. It takes a lot of resources. It takes a lot of, you know, grief that I have to go through when I know and they know they shouldn’t have asked for it. And when that rare lawyer comes along that I sense has self-regulated and otherwise might have asked for something that he or she knows and I know is probably more than [what] is fair and they don’t do it, it’s not lost on me. I make a very real note of that. And I’d like to quote a lawyer some of you may have known. He is dead now. He was a mentor of mine as a young lawyer in East Texas, Franklin Jones, Jr. And Franklin used to always say, "Lawsuits are about a race for credibility; a race for credibility with the court and a race for credibility with the jury." And I think those words are absolutely true. And lawyers that will self-regulate sometimes, they get a big bump in the credibility area with this judge, and those that don’t, it’s a withdrawal slip from the credibility bank. So, that’s what I wish I could change the most.
Payne: You know, in that same vein, I’d say, you know, pick your battles. The mere fact that you can get something doesn’t mean you need to fight over it and get it. And the lawyers I value the most are the ones who have enough experience and enough sense to make that call and just to go after the things that matter that they need, and I appreciate that and I pay more attention to what they ask for.
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