On October 19th, I had the honor of attending the American Intellectual Property Law Association (AIPLA) conference in Washington, D.C. as a presenter on the panel “Diversity in IP Law.” My co-panelists were Hongsun Yoon (LG Electronics USA) and the Honorable Faith Hochberg. Our panel was moderated by Ajeet Pai (Amazon). As I prepared for this opportunity, I reflected on my work in IP litigation over the past two decades and the issues of diversity I’ve witnessed first-hand. I’ve also begun to contemplate the significance of the #MeToo phenomena and its potential relevance to retention in all litigation, but I will address that in Part II.
I have focused on intellectual property litigation since I began my career as a young trial consultant in 1994. In fact, my very first trial was a patent case. Courtroom Sciences, in Dallas where I began my career, was retained by Finnegan, Henderson, Farabow, Garrett and Dunner to assist in its defense of Goodyear in Eastman Kodak v. Goodyear, et al in the Eastern District of Tennessee. In an interesting detail that illuminates my long history in patent litigation, the Federal Circuit issued its en banc decision in Markman v. Westview Instr., Inc., in the middle of that trial. The judge construed the claims for the jury at the end of the evidence, and of course claim construction was an issue in the ultimate appeal. I facilitated the shadow jury in that case.
Since that time, I have worked on hundreds of patent and other intellectual property cases, going to trial and observing from jury selection to verdict many times. When I moved to San Francisco in 2001, I had no way of knowing that the Eastern District of Texas Rocket Docket would change patent litigation dramatically, allowing me to spend most of my time bouncing between my native home and my adopted one. If one’s career can sometimes “find them”—that is surely what happened to me, as such a large number of patent cases tried through the first decade of this century were tried in the Northern District of California, the Eastern District of Texas, and Delaware.
In the fall of 2016, I attended The Civil Jury Project’s program on Trying Patent Cases to Juries at NYU Law School in New York. I am a Trial Consultant Advisor to the Civil Jury Project, which is studying the reasons and remedies for the decline in jury trials in the U.S. At that program, I began to compare the number of patent jury trials I have consulted on from beginning to end since 2009 to those presented by Maggie Diamond of the Engelberg Center at NYU Law School.
In comparing my patent trials per year between 2012 and 2015 to the number of patent trials tried to juries in the United States, I was surprised to discover that for a couple of those years, I observed close to 10% of the patent trials in the U.S. Other than the judges who hear patent cases, I can’t think of anyone else with that unique experience.
Data on women in litigation and intellectual property practice areas is challenging to locate, and data on women in intellectual property litigation is almost impossible to find. Data on the diversity of actual trial teams simply doesn’t exist..
Given my relatively unique experience, I decided to conduct a review of all the intellectual property trials I have worked on from start to finish in 2017, looking specifically at the diversity of the teams, and the diversity of the jury.
It’s been a busy year. Through August, I have observed seven intellectual property trials.
I reviewed the trial teams in each of these cases and broke out the following groups and subcategories by group. The categories I chose are not meant to be overly limiting. I did not include or examine fact or expert witnesses, which would be an interesting inquiry for a later time.
- Lead Counsel
- Speaking Role/Non-Speaking Role
- Speaking Role/Non-Speaking Role
- Legal Assistant
- Hot Seat
Looking at the makeup of the trial teams I have worked with this year was initially somewhat surprising to me. Like many in intellectual property litigation, I think I’ve simply become desensitized to the lack of diversity on many teams, particularly the subgroup of speaking role. The bar chart on the following page brings the problem into sharp relief.
Clearly, the lack of non-white attorneys of all levels is incredibly striking. Of all 51 attorneys in this review, only 5, or 9% are non-white. A pronounced lack of any non-white team members is significant. While this is only an anecdotal snapshot, there is nothing about any of the teams I worked on that was particularly unusual. Admittedly, one team was 100% male, which was out of the ordinary, but frankly that was balanced by a team I worked with that had more women thank I often see on one team, (including lead counsel).
The most striking disparity with regard to women was in their lack of leadership roles. One could argue that in this snapshot, of the 36 “leadership” roles, (Lead counsel, Partner speaking role and In-House/Client) women made up just 8%. Removing the client column from that tabulation and instead looking only at Lead and Partner Speaking role and the number goes up to only 11%.
Not surprisingly, we see the largest numbers of women as a percentage of the overall group in non-speaking support roles. Clearly, despite past initiatives, this review of a small sample set of patent trials demonstrates that we have a long way to go. Patent trials are largely still tried by white males.
The benefits of a diverse team cannot be overstated. Variations in communication styles, thought processes and problem solving strengthen a team. If a diverse team is considered a tool for success, a means rather than an end, I would argue most teams are failing miserably, particularly when you compare them to the juries to whom they are presenting.
*one of the 7 jury panels is not reflected.
It can likely be argued that patent trial juries are not as diverse as other segments of the population for a host of reasons. This snapshot contains 4 cases from EDTX for example, which tends to be less diverse than either Delaware or NDCA.
Even with that qualifier, the jurors depicted in this snapshot were far more diverse than the attorneys presenting to them—and several of the teams in this snapshot had attorneys from California, Washington, DC and Seattle.
How to improve diversity in IP litigation is a complex problem. I do believe that intellectual property in general and intellectual property litigation in particular need advocates. I often wonder to myself how I ended up in such a strange and unique niche of a career. I followed my interests to an undergraduate degree in psychology and on to a career in helping litigants in some of the most complex and technical cases in the United States. I’m often involved in complicated trial strategy decisions that require significant patent litigation acumen; assisting with how best to explain a dense patent claim, or contend with a challenging claim construction. The only thing I would change about how I got here is that I would have gotten an engineering degree.
After many years in this arena, I almost never get bored. Trials are dynamic animals in general. Trying a patent case to a jury requires that a jury learn some extremely complicated technology that may be hard to describe in everyday English, apply new words and phrases that no one in the room has ever heard defined the way they are in the courtroom, using a whole host of very specific and sometimes non-commonsensical laws and rules that apply deciding a dispute between at least two parties. It’s a lot to ask of jurors and a lot to ask of the attorneys. Add some significant time limits in some venues and it can get very exciting. It’s like playing chess on 4 boards at once—on a clock. Not only would the practice of intellectual property litigation benefit greatly from the abundance of perspectives that increased diversity would provide, but many lives would be enriched by the intellectually challenging and exciting experience to be had in IP litigation.
(Shout out to the ever-amazing Matt Boles at Legal Media for the slides.)