Creative Representation | Expert Litigation

Catch the Conscience! – Scripting a Winning Opening Statement

The opening statement is your first and perhaps best opportunity to convince the jury that your client should win. The jurors know very little about the case, are anxious to get started, and give you their full attention. Their impression of you will probably be set by the time you finish your opening. Opening is the time to establish the jurors’ expectations, start to develop a bond with them, and whet their appetite for your case.

Business as Usual: Email Evidence and the Business Records Exception in the Ninth Circuit

At a time when businesses are increasingly utilizing more ephemeral methods of communication such as chat, text, and instant messaging, email has become the standard form of business communication.

Antitrust Agencies’ “Guidance for Human Resource Professionals” Threatens Criminal Prosecution

On October 20, 2016, the Department of Justice’s (DOJ) Antitrust Division and the Federal Trade Commission (FTC) published their “ANTITRUST GUIDANCE FOR HUMAN RESOURCE PROFESSIONALS” (“GUIDANCE”). The GUIDANCE is “intended to alert human resource (HR) professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws.” The DOJ and FTC have brought a wide variety of civil cases involving employer agreements.

“Trade Secret Damages,” Chapter 9, Calculating and Proving Damages

The law of trade secrets protects information that provides independent economic value because others do not generally know that information. The holder of a trade secret seeks to capitalize on the business advantage that derives from ownership of the trade secret and prevent use of the trade secret by competitors. Moreover, the trade secret owner must make reasonable efforts to maintain the secrecy of the trade secrets or risk loss of the trade secret protection.

The Line Between Bio and Technology: While Supreme Court Remains Silent, Federal Circuit Provides More Positive Guidance Regarding Patentability of Biotechnology

The Northern District of California has amended it's Patent Local Rules, effective immediately. The changes largely pertain to damages calculations, generally requiring earlier disclosure of the parties’ positions. Most notably Patent Local Rules 3-8 and 3-9 are created which require disclosure of “Damages Contentions” and “Responses to Damages Contentions” early in the litigation. These changes may expedite resolution of patent cases and, ultimately, save judicial and litigant resources...Read More

President Signs Defend Trade Secrets Act of 2016

For many years, litigants have had original federal court jurisdiction for Patent, Trademark and Copyright cases, but the fourth major area of Intellectual Property law — Trade Secrets — has been governed by state law with no federal court jurisdiction. No longer. On May 11, 2016, President Obama signed the “Defend Trade Secrets Act of 2016” to “provide a single, national standard for trade secret misappropriation with clear rules and predictability” in federal court.

Injunction Relief in Lanham Act Cases Post-Herb Reed

Motions for preliminary injunctive relief are routinely sought in cases involving claims for trademark infringement. For many years, once a moving party established a likelihood of success on the merits, irreparable harm was presumed and an injunction would usually be issued. This all changed with the Ninth Circuit's holding in Herb Reed Enter., LLC v. Florida Entm't Mgmt., Inc., 736 F.3d 1239 (9th Cir. 2013).

How Not to Regret Your Direct: Exploring the Human Story

How often do we look back and wonder whether we could have done things better, worked harder, been clearer, obtained a better result? Especially with those trial skills we don’t often get to practice. Presenting a powerful and persuasive direct examination is one of the most challenging parts of a trial. In our discovery and pretrial work, we get to practice argument and deposition-style cross-examination, but rarely do we get the chance to prepare a witness thoroughly and then present him or her to a judge or jury. And how hard it is for most litigators to step back after all the hard preparation and let the witness be the star! To avoid regret after direct examination, listen to the witness, get to know the witness, and weave your examination around his or her human story—the interesting and unique aspects of the witness that best highlight and teach about the issues in the case.

Proving Irreparable Harm – Have The Standards Changed?

Irreparable harm is the sine qua non of injunctive relief - a showing of a likelihood of irreparable harm in the absence of an injunction is a critical factor in the injunction analysis, without which a court will not issue an injunction.

Three Legal Lessons for Startups

Startup or emerging growth companies have to act decisively, efficiently and quickly. But the frenetic pace and other challenges these companies face often lead to serious legal mistakes. All too often, these companies fail to distinguish and understand the differences between an agreement that is legally enforceable and one that is not; keep inadequate documentation of the legal rights and responsibilities among joint venture partners; and fail to identify and protect the company’s trade secrets.