In basketball, we hold our breath when a player attempts a free throw, a field goal, or a three-point shot. They don’t all go in. Some of it is luck.
How much of a patent case is determined by luck?
Years ago, I traveled to Los Angeles for the first patent case in which I would serve as lead counsel. I retained local counsel based on a recommendation. When I arrived in the city for a hearing, we discussed the vagaries of litigation. Things were tense: My client had lost a Federal Circuit appeal handled by another lawyer, and now I was preparing to go into the District Court to do what I could to salvage the client’s business.
My local counsel confessed to me that in his long career in court, he had won half his cases and lost the other half. “The thing is,” he said, “the cases I thought I’d win, I lost, and the cases I thought I’d lose, I won.” I gave him an unspoken “A” for candor. He saw litigation as a matter of luck, and he claimed to be as lucky as the average coin tosser.
We proceeded to litigate in five courts across the nation and to reach a settlement in which the patent owner walked away with nothing from our client. It took more than luck to obtain the result.
We’re always happy to take credit for victories, but the fact is that nothing in life is certain, and that is especially true in litigation. When pressed for percentages, we lawyers often bracket our expectations in a range of 40% to 60% likelihood of success in contested cases. Any party that requires certainty should avoid litigation and settle its disputes quickly.
At the outset of this year’s March Madness, I was hoping for luck for my Iowa State Cyclones. They did better this year: They made it to the Sweet 16 before being overpowered by Virginia.
In a court of law, as on a basketball court, luck is what happens when preparation meets opportunity. The ancient Roman philosopher Seneca the Younger made that observation in the context of sport, specifically, wrestling, about 2,000 years ago. It’s still true today: With preparation, we can improve the odds for success.
In basketball, luck and skill are nice; talented players are the essential resources.
Some would argue that in litigation neither luck nor skill amount to much—that facts are king.
The late Hon. Howard T. Markey, first Chief Judge of the Federal Circuit, often advised lawyers, “Tell us the facts. We know the law, but we don’t know the facts of your case.”
Facts seldom speak for themselves
Unfortunately for many lawyers and clients, facts usually don’t speak for themselves. As a learned student of Abraham Lincoln’s legal practice observed:
Many people suppose that there is only one way of telling the truth, and that, given honesty, no art is required to make a frank and fair statement of matters in dispute; but this is a popular delusion. “A truth which is badly put,” says Mr. Wells in his “Mankind in the Making,” “is not a truth, but an infertile, hybrid lie,” and every lawyer of experience knows that not one man in a thousand can make facts speak for themselves. Certainly the average practitioner does not master his material. He is controlled by it, and presents his cause in such a manner as to necessitate contradiction, invite confusion, or challenge belief.
Frederick T. Hill, Lincoln the Lawyer 208-09 (1906), quoted in my article, The Abraham Lincoln School of Patent Litigation. To win, it is necessary to marshal the facts into an orderly sequence so the decision-maker can follow the presentation.
To win, marshal the facts
On the court in basketball—or in court in litigation—talent is essential, but not sufficient. Case in point: My schoolmates Hakeem Olajuwon and Clyde Drexler of Houston’s Phi Slama Jama, “the greatest team to never win it all.”
In litigation, facts win cases, but they don’t speak for themselves. It is the lawyer’s job to present the facts. When it’s done well, it looks as easy and natural as a Michael Jordan lay-up. When it’s done poorly, it’s painful to watch and the outcome is unpleasant.
Facts are precious resources. In their natural state they’re like iron ore, which must be mined and refined. They’re like silk threads to be woven into a tapestry that tells a story.
In basketball, the coach is often the embodiment of skill and victory.
In a quick guide to North Carolina vs. Villanova national championship game, the coaching line-up is compared in the following two paragraphs:
Villanova: Jay Wright is 19-12 during his career in the NCAA tournament, including a 19-10 record with Villanova. It’s the 11th time he has led Villanova to the NCAAs and the first time in the national championship game.
UNC: Roy Williams, who won national championships with UNC in 2005 and 2009, will make his fifth appearance in the national championship game. He is in a tie with Adolph Rupp (Kentucky) and Dean Smith (UNC) for the third-most title game appearances in NCAA history. UCLA’s John Wooden has the record with 10 appearances, while Duke’s Mike Krzyzewski is second with nine. Williams is 70-23 in his career in the NCAA tournament, including a 36-9 record at UNC. That win total ranks second in NCAA history behind Krzyzewski, who has 90.
It is the coach who devises, executes, and adjusts the game plan. The coach motivates and uses the right players (resources) in the right roles.
In patent litigation, it is the lead attorney who musters the resources, that is, the facts, through witnesses, exhibits and documents. The lead attorney weaves the facts into a compelling story.
Basketball and litigation are filled with technical rules. Time-outs and font sizes? Yes, those rules are good to know, but the knowledge won’t get many wins.
There also are “how to win” rules of thumb. In basketball, it is desirable to shoot high field goal percentages, to avoid turnovers, and to get offensive rebounds. But it takes more than that knowledge to win an NCAA title.
Maybe that’s what Coach Krzyzewski meant when he said last year that “too many rules get in the way of leadership.” He learned that reliance on rules alone can “put you in a box” and keep you from “making decisions.” McGregor, Final Four 2015 Coaches.
In a 2015 “Back of the House” presentation on Federal Circuit practice, sponsored by the Intellectual Property Law Association of Chicago (IPLAC), no fewer than 23 tips were offered on effective brief-writing and another 10 tips on oral argument. But one can pare the issues, avoid personal attacks, and still not win many cases.
Ultimately, victory, insofar as it can be shaped by a coach or a lawyer, is a matter of skill, judgment, and will. It’s using good breaks, overcoming bad ones, and making the best use of resources.
The key to wining patent cases is this: Marshall the facts into a compelling story. For more insights, see my article, The Abraham Lincoln School of Patent Litigation.
Tonight in the NCAA finals, it’s North Carolina vs. Villanova.
Good luck to you and your favorite team!
This article is a revised version of the article originally published here on April 3, 2015.