6/8/2020
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`Why Gilstrap Is Getting Ready For Trial — And Not On Zoom - Law360
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`Why Gilstrap Is Getting Ready For Trial — And Not On
`Zoom
`
`By Daniel Siegal
`Law360 (May 15, 2020, 6:04 PM EDT) -- With courthouse closures stretching from weeks to months,
`U.S. District Judge Rodney Gilstrap knows he has to keep cases moving, but like other judges and
`attorneys, he says this is a delicate balancing act that isn't solved as easily as loading up trials on
`Zoom.
`
`Judge Rodney Gilstrap
`
`Examples of the competing priorities facing the courts are already lining up. A federal judge in
`Virginia shot down Cisco's objections and proceeded with a still-ongoing bench trial via Zoom in the
`company's patent dispute with cybersecurity company Centripetal Networks Inc. And the chief judge
`of the Southern District of New York relented in her push to hold a patent bench trial this month
`after the parties, Ferring Pharmaceuticals Inc. and Serenity Pharmaceuticals LLC, both complained
`that doing so would hamper their ability to properly try the case.
`
`In Texas federal court, the Western District and Eastern District are taking different tacks. Chief
`Judge Orlando Garcia of the Western District issued an order last week pushing off all trials —
`including bench trials — to July at the earliest. He told Law360 on Wednesday that he wouldn't be
`surprised if jury trials don't resume until September.
`
`In the Eastern District, however, Chief Judge Gilstrap told Law360 that he anticipates the court
`allowing jury trials to resume at the start of June. Judge Gilstrap, who presides over one of the
`busiest patent dockets in the country, said that he intends to try two cases — with a thorough set of
`health measures — in his own courtroom that month.
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`"There's not a right or a wrong here," he said. "This is a very difficult set of first impression
`circumstances where you're trying to balance a constitutional mandate and an interest in speedy
`justice with real public health concerns."
`
`Judge Gilstrap, who is based in Marshall, Texas, noted that his district is largely rural and has not
`seen a high number of COVID-19 cases. He said he had delayed a patent trial that was originally
`scheduled to go in June because it involved attorneys from around the country and the globe.
`
`On June 1, however, he is likely to commence trial in a personal injury case that doesn't involve
`anyone coming from far away.
`
`Trial attorneys say they understand why judges are pushing to get any cases to trial that they can,
`given the backlog that will fill dockets once social distancing orders are lifted and jury trials resume.
`
`Courts are especially looking at tackling bench trials remotely, such as in the Centripetal v. Cisco and
`Ferring v. Serenity cases.
`
`Paul Skiermont of Skiermont Derby LLP, who represents drug company Serenity, told Law360 that
`sticking to the end-of-May trial date in his case posed unique challenges. With the witnesses for his
`client largely being practicing physicians and Ferring's experts all being from Europe, even holding a
`remote trial by that date posed daunting logistical challenges, he said.
`
`They're not just looking at the lawyer who's actually arguing; they're looking at the other
`lawyer. Experienced judges, good judges, are reading everything in the courtroom.
`
`Yar Chaikovsky
`
`Intellectual property practice group co-chair, Paul Hastings LLP
`
`But trial attorneys have also raised general concerns about rushing to try cases by Zoom
`videoconferencing. The lawyers say it's unclear whether they can have the same impact on witnesses
`during cross-examination or be able to read a judge or opposing counsel the same way that they
`could in person — essential components of trial advocacy.
`
`Yar Chaikovsky, co-chair of Paul Hastings LLP's intellectual property practice group, said that while
`some judges have pushed parties toward remote hearings, he believes experienced judges know that
`these measures are a downgrade from a normal trial.
`
`"They're not just looking at the lawyer who's actually arguing; they're looking at the other lawyer,"
`he said. "Experienced judges, good judges, are reading everything in the courtroom."
`
`Robins Kaplan LLP partner Patrick Arenz said he understands why judges are trying to find ways to
`move trials forward even while stay-at-home orders are in place.
`
`"There are district courts that are probably of the mindset of not letting the perfect be the enemy of
`the good, and are making sure to move cases forward and move their docket forward," he said. "So
`that when we get back to business, there's not an enormous backlog to deal with."
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`Judge Gilstrap said as much himself, noting that "none of these cases are an island unto themselves"
`and that delaying one trial causes a chain of delays on the docket.
`
`"There's a real concern about being able to address — with the resources and the manpower we have
`— the cases that are stacking up into the summer and fall and later into the year," he said.
`
`In order to try cases safely next month, Judge Gilstrap said potential jurors will have their
`temperature taken when they enter the courthouse, will be spaced out in the courtroom and will be
`provided with masks. Instead of one microphone, multiple microphones will be used during jury
`selection so that they can be disinfected between uses.
`
`Judge Gilstrap, however, isn't looking to try cases via Zoom before opening his courtroom back up.
`The judge said that his docket doesn't have many bench trials and thus isn't as amenable to remote
`work.
`
`He also said he is watching to see how the Centripetal v. Cisco bench trial turns out, but also noted
`that his recent use of videoconferencing for Markman hearings and other hearings makes him
`question whether the technology could really work for a trial.
`
`"It's my opinion there's as much or more nonverbal communication in a bench or jury trial as there is
`verbal communication," Judge Gilstrap said. "I have real concerns about whether transitioning
`motions practice to a full-blown trial in that medium would be workable."
`
`Judge Gilstrap pointed to the "unavoidable audio lag" that can make it hard for him to get a word in
`edgewise when an attorney is arguing — saying that at times he has taken to raising his hand like a
`stop sign — and that having both demonstrative exhibits and the attorney makes for a crowded
`screen.
`
`The trial attorneys also worried about how trying a case remotely impacts their skills, with
`Chaikovsky saying that it's hard for a trial lawyer to be dynamic over video.
`
`"If you've got a high-quality trial lawyer, you've just degraded them significantly in terms of their
`impact on the judge, on the jury — to the extent we end up doing any of that in front of a jury — or
`the witness," he said. "Because it just doesn't come through via a screen."
`
`Arenz said that in addition to losing some of the "magic" of an in-person cross-examination, trying a
`case remotely also poses challenges for trial preparation and coordination simply by keeping the trial
`team and witnesses from working together in a single room.
`
`As the crisis stretches on, however, parties may ask themselves whether delaying a trial several
`months is simply delaying getting a resolution, Arenz said.
`
`Chaikovsky agreed, also noting that the consensus about the pandemic means that parties likely will
`not be able to just wait it out.
`
`"[Judges have] probably the correct view of the world, that the wheels of justice can't stop for a
`year," he said. "Let's assume this COVID situation is a bad situation. Why do I perceive it's going to
`be any better five months from today? Or six months? Or three months? It's not like it's going to go
`away all of a sudden."
`
`Judge Alan D. Albright in the Western District of Texas appears to be taking that tack. On Friday, he
`reset an impending patent showdown between MV3 and Roku for June 29, which is technically a
`day before jury trials are allowed to resume in the district.
`
`Judge Albright's minute entry for the Wednesday telephone conference in which he set the date says
`he told the parties, "Trial must go when set — we will have to work around conflict." The judge did
`not respond to requests for comment about his decision.
`
`Chief Judge Garcia, however, was not so sanguine about bringing jury trials back. The judge told
`Law360 that the district is not looking at holding trials by Zoom yet.
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`Judge Garcia said that even though Texas Gov. Greg Abbott has lifted some social distancing
`restrictions, the district's judges are still waiting to see if jurors are going to feel safe enough to
`actually report for jury duty before resuming trials.
`
`"I'm not Dr. [Anthony] Fauci, but in my view I don't think we're going to be able to get juries until
`August or September," he said. "I could be wrong. I hope I'm wrong."
`
`--Editing by Emily Kokoll and Jill Coffey.
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`All Content © 2003-2020, Portfolio Media, Inc.
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