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Virtual Litigation in a COVID World

Episode Summary

Today's episode is an audio postcard from the world of IP litigation in the middle of a pandemic.

Episode Notes

Today's episode is an audio postcard from the world of IP litigation in the middle of a pandemic. Over the past few weeks we have collected conversations with law firm litigators, judges, and in-house counsel about how COVID is impacting IP litigation.  They talked about how they used to see the world, how things have changed, and how those things may remain changed after the pandemic passes.  

We think of this episode as a time capsule. It captures a moment in the late spring and early summer of 2020 where things have been different long enough to understand some of the changes, but not long enough to fully appreciate the impacts of those differences.

Special thanks to our guests:

Episode Transcription

Michael Weinberg (00:02):

Welcome to Engelberg Center Live. I'm your host, and the Executive Director of the Engelberg Center, Michael Weinberg. Today's episode is an audio postcard into the world of IP litigation in the middle of a pandemic. Over the past few weeks, we have collected conversations with law firm litigators, judges, and in house counsel about how COVID is impacting IP litigation. They talked about how they used to see the world, how things have changed, and how those things may remain changed after the pandemic passes. We think of this episode as a time capsule. It captures a moment in the late spring and early summer of 2020, where things have been different long enough to understand some of these changes, but not long enough to fully appreciate the impact of those differences. To start things off, we asked our guests about how they thought about the role of in person interaction before the start of the pandemic.


Erin Mehta (01:09):

We didn't primarily select outside counsel based on location, but it was a factor. So to the extent that someone was local to Los Angeles and could come in to present the case and do witness interviews and that sort of thing, at least for the initial round of interviews, I would prefer them to come in and do it in person and talk to our tech team that way. Erin Mehta, I am senior counsel litigation and patents at Hulu.


Mark Abate (01:35):

We, we would, we would tend to shy away from video depositions, including depositions that were overseas. We would want to go, you know, sit with the witness, things like that. Mark Abate, I'm a partner at the firm of Goodwin Procter in New York.


Erin Mehta (01:51):

I also attended all hearings. Most of our cases post TC Heartland were or have been filed in central district of California. But even if we had a case that wasn't in central district, I would try to fly out to, you know, federal circuit appeal, hearings, Markman hearings. I mean, not necessarily a scheduling conference, but if it was something substantive, I would try to attend in person.


Bruce Wexler (02:15):

I know that I think maybe in businesses, maybe they were doing a lot more video conferences is the norm. But I think, you know, with us, with the lawyers, it was a lot in person. Bruce Wexler, global co-chair of intellectual property at Paul Hastings, a partner in the New York office.


Leonard Stark (02:35):

Six months ago, I'm afraid. I probably had not given much thought to the importance of face to face interaction in litigation. It was just a given throughout pretty much the entirety of my career. I am Leonard Stark and I am the chief judge of the United States district court for the district of Delaware.


Erin Mehta (02:57):

My job is basically to select outside counsel, make case strategy and decisions, and also manage outside counsel. I find it was more effective to do that. If I was in person to observe the courtroom, observe the way the arguments went, rather than rely on summaries from my outside counsel.


Claudia Ray (03:15):

I think there are some things that are important to do in person, things like deposition prep being in the same room with somebody seeing a potential expert case to face when possible, so that you can evaluate them seeing a witness in person so you can get a sense of how they present themselves and what they're likely to be like on the stand. Claudia Ray partner at Kirkland and Ellis in New York City.


Chris Noyes (03:42):

The inventor of the patent may be a former employee may have moved on to a, to a university, a new job, and they're reluctant to participate. And many times they've been fired by your client for various reasons, getting in a room with that person, talking to them about their invention, showing them that you care about their invention and them, uh, really helps with the recalcitrant witness or inventor. My name is Chris Noyes. I am an IP litigation partner at WilmerHale.


Ashok Ramani (04:13):

There's a lot that can be that you can glean and you're taking a deposition through body language, um, that you just are not going to see with the video, the video depo setting. There's also a lot you can get by making the witness feel uncomfortable, both in terms of the environment and the way that you, you physically behave during a deposition, uh, that you can't mimic where it's much harder to mimic during the video session when they're sitting in their home court, if you will. I'm Ashok Ramani, head of IP litigation and a partner at the Davis Polk in New York.


Chris Noyes (04:47):

I've always viewed my job as the job of a litigator as one of relationship building and communicating and not just oral or written communication, but sort of nonverbal communication is extremely important in building relationships. And when I think about the relationship building of a litigator, there's various audiences, you have witnesses, you have opposing counsel, you have judges, you have juries.


Ashok Ramani (05:17):

One is being able to read body language and establish rapport, you know, just kind of basic nonverbal communication techniques that we've all used and developed over the course of our careers and our lives really.


Bruce Wexler (05:35):

Another thing is, is, is to read nonverbal communication, you know, body language cues, um, uh, look into people's eyes, uh, when you're making an argument with a judge to see if, if, if you can detect whether certain things are interesting or not interesting, or judge wants you to move along to something else, or, um, you seeing your opposing counsel, uh, depositions to watch a witness, to, to, to use body language, to, to, to persuade.


Chris Noyes (06:06):

I've been trying to sit there on these video calls and figure out could I assess whether or not that person was telling you the truth or that I believe them. Um, if I was a juror or if I was a judge trying to make credibility determinations, I think that'd be incredibly hard.


Mark Abate (06:23):

In a face to face setting you sort of get a sense for witness credibility. And I think what we're doing now with more and more and more of these zoom calls, not just through, uh, you know, depositions or hearings, but we do them now for business meetings, for personal meetings, you know, talking to family members who are far away, things like that, you get a greater sense of just assessing, you know, what a person is telling you.


Leonard Stark (06:48):

If we're talking about having live witnesses and either me as the finder of fact, and a bench trial, assessing credibility or a jury, being able to assess the credibility of the live witness that I think I still presume largely, uh, is best done when you are all together.


Mark Abate (07:10):

I think it's important in terms of sort of assessing witness credibility and things like that. But in terms of, uh, in terms of cross examination, there is this dynamic of being in the room with someone and really trying to influence them a little bit with your body language or your tone.


Chris Noyes (07:29):

I like the feeling of standing in the courtroom that formality of the courtroom, the judge there being able to say, okay, he's not buying my argument or she's not buying my argument. I'm going to move on or looking at it at a jury while you're doing it a direct examination. And knowing that they're with you completely, or there are three of them are asleep. Cross examination is something that I enjoy greatly. And as an art and as skill that takes a lot of time to perfect. And that is one thing that I think will suffer if we're doing that in a remote context, I don't think you can control the witness as well. I don't think you can control the pace of the cross examination.


Ashok Ramani (08:11):

It's a lot easier to build rapport positively or antagonistically if you're in person, if you're face to face with somebody it's just a lot harder to do that. Even if you can see someone see the upper half of someone on video, and it's much harder to do that over phone.


Erin Mehta (08:29):

That's sort of scary to, to think about virtual source code review. When, you know, for years, patent litigators have lived and died by standalone computers in a room and outside counsel's office with, you know, supervision and limit number of hours and pages. And maybe that's just an unfounded fear, but I think given the inherent risk of putting anything over the internet, that's something that causes me concern.


Chris Noyes (08:58):

But I've realized how important, at least for me, my practice and how I feel like I can best be the best lawyer that I want to be, that I need to that personal interaction. And I need to be in a room with somebody and I need to be able to look them in the eye in person and shake their hand or whatever it's going to be in the future elbow bump or whatever we're going to be doing. Uh, I personally find that the most satisfying part of the job is to develop these relationships with people.


Erin Mehta (09:31):

This might be my own bias, but being a female, I also found it more effective to manage majority of male outside counsel if I was in person.


Claudia Ray (09:44):

I'm not somebody who's a big fan of zoom. I, I find the technology still a little bit clunky. And so some of the audio delays and the other technical things that happen, even with a good connection, um, make it frustrating. I think the technology is sufficiently clunky that the communications are somewhat stilted and you all have to wait for somebody to talk. And so you end up with a situation where a lot of people spend time, maybe a lot of time looking at the screen.


Erin Mehta (10:13):

I think that I have welcomed the zoom call. It's not as good as being in person, but it's on a spectrum. It's not halfway between a telephone call and an in person it's closer to an end person. I think there's something about visually being able to see somebody and see how their, you know, tone and facial expressions or coming across informs the experience.


Chris Noyes (10:40):

The technology has been proven robust enough for us to be able to present an hour slide presentation and have multiple presenters present to a client or to the court for my practice. What I've been thinking about now is how do we effectively present our case, our witnesses via the virtual world, and you know, how do you get the audience to focus on the particular square on the screen that you want them to focus on? And how do we convey a story? How do we convey that are witnesses credible and, you know, on the right side of the v, uh, in a litigation,


Claudia Ray (11:19):

The first tip that everybody has to have in line when they're doing this is just to understand that it really is a different kind of platform. It's not the same. You're dealing with a technology layer that has to be accommodated, and it's gotta be accommodated in more than one, one setting


Chris Noyes (11:36):

Trying to establish a personal connection with the people that you're going to be working with is one way that I've tried to continue to develop rapport with the witness. For example, talking to them about their family and learning about who they are as a person, which obviously was important in a world where meeting with them in person, but even more so now, who are they as a person and explaining to them who you are as a person as well is extremely important to building that relationship that you need.


Claudia Ray (12:04):

If you're involved in taking a deposition and you've got exhibits that you need to use, you have to think about what you're going to use and frankly, plan in advance more than you otherwise might.


Bruce Wexler (12:16):

What a lot of people are doing now is, is a hotseat, what they call a hot seat operator, which would be someone who's tasked with having all the exhibits and then bringing them up on the screen for the witness.


Chris Noyes (12:30):

You're in a professional setting and you have to focus and not be distracted by your animals or your children, which inevitably seem to come at the worst time. But you have to put yourself in the appropriate mindset to focus and pay attention and not let yourself get distracted.


Ashok Ramani (12:48):

Where you should position your camera. What kind of camera you should use lighting room background for being to avoid, uh, offering inadvertent distractions.


Chris Noyes (13:00):

The camera's placed in a certain way. They're not leaning in the right way. They're leaning back in their chair. They're looking up, uh, they're muttering to themselves on mute. All of those things are new tools that we have to learn, how to deal with ways to prepare witnesses that we had not ever conceived of before. Other than the five minutes before the deposition and said, you're on video, make sure you lean forward and look into the camera.


Bruce Wexler (13:26):

And of course you also have to think about looking at the witness while you're also trying to manage your documents, where, um, you know, it's in person, it's easier just to sort of look down and look up, you know, kind of all the documents, but here you have a little camera, which is the way you would be looking at the witness. So they would see your face.


Claudia Ray (13:47):

If you've ever done a remote deposition with somebody who's farther away than in the next room, you understand that there's an audio delay. Often you have to take that into account, or you're going to end up talking over each other. The court reporter is going to struggle and your record will be a mess. So there was a pacing issue as you take the deposition. And then there is also a pacing issue in a more global sense for the deposition as a whole. How much can you cover if you're in federal court and you have seven hours on the record, what are you going to do with those seven hours? How much can you get through?


Leonard Stark (14:22):

I have been pleasantly surprised, uh, that, uh, largely, uh, I have been able to ask my questions and get them answered. And I have been able to, I think, create a space where counsel feel they have had a full and fair opportunity to make their argument.


Claudia Ray (14:42):

There was a lot of information flow that didn't have to be structured because it just happened anyway for the folks in the office. If I'm not working with them on a particular matter, then there's less contact. And we have to make more affirmative efforts to see each other, to know what's going on to know about cases, to know about things that may be happening to people in their personal lives.


Ashok Ramani (15:04):

Building a rapport with your case teams and with your clients, is something that you need to do intentionally and regularly. It doesn't have to be done face to face.


Claudia Ray (15:15):

If we had a lunch meeting, we would have time when we're all getting sandwiches and sitting down and getting together where people would have conversations. Now we have to structure that on a zoom meeting. Um, so it's still happening, but it has to be in a more intentional way. And we're trying to up the frequency of that because otherwise everybody's just working in their home office wherever they may be.


Bruce Wexler (15:38):

I've found that with these large zoom meetings, the idea that everybody will simply have small chit chat and interact with each other, doesn't really happen. And I, and I realized that because when you're sitting out there, let's say you're a, um, one of a large group, and you're sitting out there for you to turn on your mic and speak. You know, you basically have to speak when no one else can because people can't really just have small little side conversations. So when you do that, you have to either decide is what I'm going to say worth, you know, opening the mic and sort of being, taking the floor. So the way we adapted to that was to try to bring a little more structure and, you know, have maybe people in advance be tagged to, to bring up a topic and get a dialogue going. And that was actually successful.


Claudia Ray (16:26):

The teams that I've been working with have been strong teams who know each other well. And we were able to pivot from Friday to Monday going completely offline in terms of none of us being in the office and everything got done. That to me is a Testament to those relationships that we had developed over time in person.


Erin Mehta (16:51):

Given the virtual impact of COVID, it's just easier to oil people that you already know. And I think this actually has proven to be true in social context as well. So it's like the people that I was friends with before, we've managed to stay in touch either through zoom or, you know, a social distance walk or something like that. But you're not necessarily making new friendships because it's harder because you didn't know them sort of in like the live setting,


Leonard Stark (17:19):

Different judges feel differently about PowerPoint presentations, I, as counsel generally know, I'm pretty open to it and generally find them to be helpful. Uh, my impression is that in the courtroom, you know, in, in the normal world, six months ago, they were probably working on those slide presentations right up into an hour or two before the hearing. And then the hearing would begin with them, handing me usually very massive packs of documents. So I'd have my own physical copy as they were going through the presentation. And I'd have that with me as I was working on an opinion, you know, after the hearing, uh, now, uh, no paper copies and we're not in the same space. So I make them turn those into me at 4:00 PM the day before I don't know exactly what that does to their schedules. I, I hope it actually helps, uh, that those slides are locked in the day before the actual presentation. But for me, it's been, it's been helpful


Ashok Ramani (18:20):

Many lawyers just as a default, especially in IP cases because there tends to be a lot at stake. They tend to tap video depositions in person for everything, you know, which is fairly expensive. I think that this process, it certainly showed me that you don't have to do that. You know, you don't have to travel if you're taking a deposition and much you think carefully about whether or not it's actually worth it.


Mark Abate (18:44):

One thing that could happen perhaps is, you know, you could, you could have this additional efficiency in discovery. In other words, not just the lack of travel, but also efficiency in terms of being able to schedule things more conveniently for everyone.


Chris Noyes (18:58):

I don't think clients will expect you nor do. I think they want to pay for it, um, to fly out, to see them on a frequent basis or to give them a case update. And some clients want quarterly case updates, for example, and then you usually fly to their client's site and everyone's in a room. You know, there'll be some of that, but I don't think clients will expect that. And if you say to them, I can't make that trip or I can't be there in person. I think their expectations will be that we can do it via video and that's fine. We all know it works.


Mark Abate (19:29):

The courts are now going to be more flexible about hearings. And particularly when you have a case in another state, you know, or across country, I think the judges will be more open to the idea of a video conference or a hearing format.


Leonard Stark (19:45):

I think I've been able to let parties take the time to tell me what they want to tell me to direct me to the slides that they think are important that they've given me the day before, while still having plenty of time to have a discussion back and forth and get my questions answered. So I've had to be probably more tolerant, at least in terms of a more generous with my time than I would have been in ordinary times in the courtroom and counsel, of course, I think you've had to be as fully prepared as, as they always were and are probably grateful that I've let hearings go longer than I would in the courtroom.


Bruce Wexler (20:23):

There are times including in discovery disputes and things of that nature, where the burden on the court has really forced to parties to try to cooperate, to bring to the court's attention only disputes that really matter as opposed to, for example, going to the court is leverage or posturing, you know, all the things that drive courts crazy. But now with the burden on the courts, that's really less and less available. And so, um, I do feel like there's been maybe a little bit of an open dialogue with opposing counsel where they kind of say, you know, look, we better make a real effort to try to cooperate here on certain things, because we really have no choice. The court's not gonna, you know, want to get involved in this.


Leonard Stark (21:09):

I've not had a trial, uh, since mid-March, I had five trials in the first 10 weeks of the year, which was a very high rate for me, typically I'll have nine to 12 trials a year, I think is what I've had, uh, over the past 10 years. So five in two and a half months was, was a very high rate, but I would have had another, probably at least that many over the last three months based on what my calendar had looked like, but we haven't had any trials. And so, uh, what that has allowed me to do, and I wish it weren't this way. I wish I was having trials, but what it has allowed me to do is instead of have two or three hearings a day on days when I have hearings, I've pretty much stretched things out to have one hearing a day. And that has allowed me to be, uh, better prepared and more patient and give parties more time.


Chris Noyes (22:04):

The one thing that I think will improve for the lawyer who has been on the road three weeks out of the month, every year, there'll be less of that. There'll be less of the overnight trips to the West coast for a one hour meeting.


Erin Mehta (22:19):

I think particularly given the state of traffic in Los Angeles and, um, the nature of my job function. I just don't think it's, or, you know, maybe I drive in for certain meetings, but then drive home like this idea that you have to artificially sit at your desk until a certain hour, even if you don't have a meeting, seems silly.


Ashok Ramani (22:41):

IP litigators tend to travel quite a bit. I think probably more so than just your typical commercial or criminal litigators. And so having that travel bead suddenly stopped. I think it's actually been fairly beneficial. It's been a refreshing break, you know, for me personally, not that to be on a plane, you know, three times a month, four times a month as per normal, you know, and it gives you time to actually do more thinking on a case and do more substantive work instead of just, you know, race to the airport,


Claudia Ray (23:12):

We all know that the costs of things like depositions and hearings are not insignificant in many cases, particularly where there might be travel across country or between continents. And so the feedback was that it worked well enough that they would think of it as an option that actually can be viable in a broad context.


Bruce Wexler (23:33):

Yeah. I know one thing I think we've been doing a little more of is kind of sharing documents electronically and, uh, talking through them and using them.


Chris Noyes (23:41):

And I think we're going to have more remote court hearings. Some will be more effective than others. We're going to have remote bench trials.


Leonard Stark (23:49):

A very difficult question is going to arise probably with some frequency, which is what if some people can truly safely get to the courtroom, but not everybody can. While I would benefit as a fact finder because we're talking about bench trials, principally from having as many people in the courtroom as I can because it's easier for me, it's more interesting for me, less risk of technical problems. I have to, I think be concerned with what kind of undesirable pressure does that potentially put on those who may be, could get to the courtroom safely, but aren't sure that it's safe for them to travel or to interact with other people and then return home to whatever their home situation is.


Chris Noyes (24:40):

Certainly, it's a good thing that we are, the judges are going to be willing to do remote hearings in the, in the patent litigation context, Markman hearings, for example, those to me seem tailor made to be done remotely.


Leonard Stark (24:53):

My best guests sitting here right now from the three months of experience with virtual hearings is that the ones where I have multiple summary judgment and Daubert motions, all being argued together, those probably are still best done in court, a motion to dismiss or a, just a discreet single motion that has one or two issues to it. And Markman hearings, I think can be done pretty effectively, uh, remotely things like discovery, motions, uh, most discovery motions. The judges just decide based on the letter briefs and the argument, you know, without spending a lot of time sometimes without even writing written decisions, oftentimes they just dictate them from the bench. So I think that's the type of thing we certainly could in the future be doing all by video. In fact, I probably won't have a lot of flexibility in my schedule to fit civil hearings in and it just is easier for everyone. I think, uh, if I schedule a, a civil hearing and a patent case at 5:00 PM on a Tuesday and do it by phone, uh, then to try to find, you know, a prime time spot during normal business hours, but make everyone travel to me.


Chris Noyes (26:13):

The success of an online bench trial is going to depend greatly on the judge. Judges who have the temperament to roll with the punches to understand that there are going to be technological glitches, that people are going to talk over one another acknowledge the humor that is, is in the situation that this is going to be. It's not going to be as formal as being in a courtroom. I think those judges will do well with, with remote trials.


Mark Abate (26:45):

I can certainly see us prioritizing depositions and saying that, uh, you know, certain witnesses have to be examined live and perhaps experts would be examined live. But, um, some fact witnesses perhaps, uh, aren't quite as important if you're certain that someone is going to be a fact witness, you probably want to take that deposition face to face. But for example, there might be witnesses that go to issues of damages. So, you know, a marketing witness of the company or a sales witness of the company, people like that who aren't really central, but you need certain facts that your expert's going to rely on then to put together your damages story, those type of people, the unlikely to testify live at trial,


Leonard Stark (27:36):

The cost, the expense the time, and perhaps even the risk involved with travel and disruption and having to come to Delaware as frequently as happened before.


Bruce Wexler (27:51):

Businesses, at least the clients that I deal with, they did a lot of meetings by video. And so I think law firms, we tended to do a lot of in person meetings.


Erin Mehta (28:04):

I would still prefer in person because I find that people are more themselves and more natural in person.


Bruce Wexler (28:12):

The good that can come long term from this is again, the ability to adapt and deal with things perhaps in a way that might be more efficient.


Leonard Stark (28:24):

What I have pleasantly been surprised to learn is that I can do what I need to do effectively for the most part, without having people in my courtroom all the time. And I can be more selective once we're able to have people in the courtroom safely. And if I do that, I am very confident that overall, that will be in the interest of justice.


Chris Noyes (28:54):

Perhaps there'll be more access to, to hearings, more access to justice, for lack of a better word in a remote environment, because it doesn't require people going to the courthouse, traveling, finding a lawyer, you know, it just maybe easier to find a lawyer or to get into a forum or to have a hearing and have your voice heard remotely or virtually than it currently is.


Ashok Ramani (29:24):

It's going to be harder for those, with the claim to vindicate that claim, you know, in a remote environment.


Erin Mehta (29:33):

As a patent defendant, I found it to be helpful for delaying cases and negotiations, and that want us to give them money for patents that we don't practice.


Ashok Ramani (29:45):

There are absolute the advantages that the wealthy and well-represented already have in our system will be magnified. Um, to the extent that aspects of it go remote, in my view. My wife and I have a daughter who's just finished sixth grade. And at her school, we live in a wealthy area in her school, even before the remote distance learning was great. Um, you know, about as good as it could be done as best we could tell. That's not the typical case in some of the school districts, even 10, 20 miles from us. And so there's an assumption that people like me by the app like, Oh, Hey, this distance learning thing, isn't so bad. That is very dangerous because few people are as well situated as we are.


Claudia Ray (30:30):

Is it a good thing for justice? I think in some ways it may be in that we are looking at technology and how can we make it work and how can we make access better and easier? But I think it's not good because the premise there is not a given. Not everyone has access to technology. We see that with schools, with schools moving to online learning. And the first question is, well, what do you do about students who don't have computers don't have online access?


Michael Weinberg (31:08):

Thank you for joining us for today's episode of Engelberg Center Live. I hope that this COVID time capsule has given you a new opportunity to reflect on how your own life has changed because of the pandemic and what kind of long term impacts COVID may have for you and for society at large. As always, if you have thoughts or questions about today's episode, please let us know on Twitter @NYUEngelberg. I'm Michael Weinberg. Thanks for listening.


Michael Weinberg (31:43):

This episode of Engelberg Center Live is licensed under a Creative Commons Attribution Share Alike 4.0 International license. The theme music is by Jessica Batke and is licensed under the same license.