In-house counsel and company executives who can make decisions need to attend hearings to see what they’re getting for their legal fees, patent judges said.
Judges told Silicon Valley patent lawyers that in-house attorneys and their clients should know what they’re paying for when they hire counsel to litigate their disputes. And the best way to find out is to show up for court hearings.
“I am amazed that you all don’t show up with more regularity, particularly when you’re looking at a summary judgment motion or have a Markman” hearing on claims construction “or some other significant proceeding where you have spent in all likelihood six figures in legal fees and costs to get that thing ready for me to decide,” Judge James Donato, U.S. District Court for the Northern District of California, said.
“I don’t see how you can be good consumers of outside counsel work or good protectors of your clients’ money if you’re not watching your team in court,” Donato said at a session of the conference sponsored by University of California Berkeley Center for Law & Technology and Stanford Law School.
Somebody needs to be the eyes and ears in the courtroom rather than rely on the lawyers who did the arguing report back how they did. “You would not ever go and buy a meal at a high-end restaurant and not consume it and wait for someone else to tell you the food was delicious,” Donato said.
Attending Hearings Helps Clients, Counsel
Judge Ron Clark, chief judge for the U.S. District Court for the Eastern District of Texas, requires the general counsel or a corporate-level decision maker to attend hearings either in person or via phone to understand what’s happening and what the court demands.
“I was a lawyer for 20 years. Your client doesn’t always listen to you when you try tell them, ‘I’ve got to have this information now to give to the court for disclosure,’ and they say,’ Yeah, yeah. You’re the lawyer. Deal with it,’” Clark said.
“I’ve had a number of lawyers tell me they appreciate it because their client understood that these disclosure deadlines and other deadlines mean something. They’ve heard it from the judge. If they ignore it then, then I don’t feel a lot of sympathy for them that when that key evidence, that key witness is not allowed to testify for being late disclosed. I told them about it,” Clark said on a judges’ panel.
Judge Beth Labson Freeman, Northern District of California, doesn’t require corporate representatives attend hearings, and is “impressed by how often a client representative comes to the case management or the major motions” in her San Jose, Calif., courtroom.
“And I do think word gets out because I introduce and acknowledge and thank them for coming, and I think as lawyers see I’m warm to it, they bring more,” Freeman said. “But I actually mean it sincerely that it actually means a lot to me that this client is invested and aware of the activities going on in court and it’s not completely separate from what the company is doing.”
For counsel bringing “significant corporate officers” to hearings, “I can only say keep it up because I think it makes a difference in your client’s ability to assess where the case is going if they’re sitting in court and seeing and hearing it for themselves,” Freeman said.