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5 Secrets Of Successful Patent Litigators

Here, the pros share five secrets about what it really takes to become patent litigators performing at the top of their game.

Have a Hunger for Learning

Whether the case is about devices that help a smartphone run or active ingredients that make a drug effective, patent litigators have to want to learn as much as they can about the scientific subject matter of the case.

“In many situations, you won’t be able to anticipate until very late in a case what facts will become important, and your ability and willingness to become deeply immersed in the technology are critically important to running a flexible and agile case,” according to Jason Sheasby, a partner at Irell & Manella LLP.

“The judge and jury can sense when someone has a great facility of the technology, and it can give you confidence and credibility,” he said. “Becoming an expert in the technology also allows you to see arguments that you might miss if you have an understanding at a more facile level and adds depth to your litigation strategy.”

Put Yourself in Others’ Shoes

Attorneys are only going to get so far in their case if they only see the dispute from their client’s point of view. A key feature of any successful patent litigator is to have empathy for those around them.

“It’s the ability to figure out what the jury wants to know; it’s the ability to figure out what motivates the opponent, whether that’s the attorney or otherwise; and it’s the ability to write briefs for the judge, not for yourself,” said John Dragseth, a principal at Fish & Richardson PC. “It must be a secret because very few attorneys do it well.”

Lawyers sometimes struggle with stepping outside their own perspective of the case to ask themselves what the judge or jurors care about and how to get them to root for their client. One way to try to resonate with jurors is by drawing an emotional story out of a patent case. While a patent dispute may look like a fight over money between two corporations at first glance, a deeper review may reveal that a more relatable story can be told.

Think Big and Small

If the goal is to win case after case, attorneys must be flexible with their argument style. But being able to shift their arguments from the big-picture level down to the tiniest-of-details level can only be done if lawyers know the facts of their case down cold.

“A lot of good lawyers in our field try to win just at the 30,000-foot level, and it tends to be a winning strategy,” said Gerald Flattmann Jr., a Paul Hastings LLP partner. “But sometimes you need to develop a more complex case of noninfringement or invalidity. And when you need to move to specifics, you need to know the facts.”

“Attorneys need to understand how to adjust so that if a judge initially rules against them at a general stage, they can take a deeper dive and argue at a more specific level,” he said. “This may not be a secret, but it’s something lawyers don’t do.”

Don’t Be Afraid to Go for the Kill Early

Attorneys may think they should hold back from laying into the opposing side’s witnesses until cross-examination, but successful litigators don’t wait for trial. Instead, they try to wring the most of witnesses at the deposition stage.

“I believe cases are won or lost at the expert deposition phase,” Flattmann said. “If you secure enough admissions at deposition, you’ve essentially wired the witness for trial. The cross-exam against the witness’s positions will be concise and effective, and your trial will be a breeze.

However, many attorneys waste precious time at depositions by asking about an expert’s background, rather than drawing out answers on the key issues at stake.

“Attorneys ask about what schools the expert went to and what he did his dissertation on,” Flattmann said. “Who cares? None of that matters. Of course you should know that background, but that’s not where the gold is. Attorneys should be asking the ultimate questions early.”

Adapt

Even when patent lawyers know the facts of a case inside out, they can’t always avoid surprises. Litigators who are able to pivot as new issues come to light are the ones who win cases.

“You never know what witnesses will say, and you may find out during discovery or depositions that the theory you were building your case on turns out not to be true,” Freeman said. “Attorneys have to adjust quickly as new information becomes available. If they get stuck on one theory or are unable to adjust, they could miss out on getting valuable testimony.”

For more information, see Law360.



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