Monday, January 14, 2013

Judge Posner Ruins Weekends

Not long ago, Mr. Gillette noted that some lawyers like to drop Friday afternoon bombs on their adversaries—apparently just to ruin their weekends. (Although an alternative explanation is that the lawyers are just trying to save their own weekends.)

Longer ago, I blogged about a patent infringement case that started out in the Western District of Wisconsin. The initial "newsworthiness" of the case was that a tiny Milwaukee bakery was included as a defendant among several other multi-national corporations. (**SEE below for update on that front.) But the plot eventually thickened when the case was reassigned for pre-trial and trial here in Chicago in front of Seventh Circuit Judge Richard A. Posner. (Judge Posner likes to keep busy, obviously.)

At that time I noted that Judge Posner's case management order contained a rather unorthodox provision: all motions were to be filed by the close of business on Friday, and responses were due by the end of the day on the next Monday. This is built-in weekend ruination. Someone asked in the comments whether that was standard practice in the Northern District of Illinois, but I never answered. Rest assured, it is not.

I decided to check up on the case. Right now it is mired in patent-litigation hell. Judge Posner issued his "Markman order" (construing various claims of the patent) back in August, then the parties exchanged expert reports. Now both sides have filed "Daubert motions" attacking the foundation and/or reliability of the other side's experts.

Just last Friday, Judge Posner issued an order regarding the Daubert motions. His two-page, single-spaced order notes that the Daubert motions raise two issues that require claim constructions not resolved by his previous Markman ruling. Judge Posner wants the parties to brief these two issues before he can rule on the Daubert motions. And, in this order issued last Friday, he says he wants those briefs by Monday—today.

Once again: happy weekend, lawyers!

***Update on East Side Ovens: Reader(s)™ may recall that I originally speculated that the only reason the tiny bakery (East Side Ovens) was included as a defendant was to secure a basis for venue in the Western District of Wisconsin, which has a reputation as a "rocket docket" in patent cases. This was bolstered when the plaintiff cited that reputation in opposition to the defendants' motions to transfer venue. And it was absolutely confirmed on September 12, 2012, when the plaintiff stipulated to dismissal of its claims against East Side Ovens. By that point, the venue issues were done, and the case had been transfered to Chicago for trial in front of Judge Posner. So there was no longer any need to keep the tiny bakery over the coals.

1 comment:

  1. The problem with Judge Posner's motion practice is that it punishes the responding party. The moving party has as long as they want to research and draft the moving papers but the responding party has three days to respond.

    As to your hypothesis that lawyers are protecting their weekends instead of trying to ruin the other side's, the next time I get a TRO motion on a day other than Friday will be the first time I have received a TRO motion on a day other than Friday.


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