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Alternative Dispute Resolution for IP Cases: Neutral Evaluations and Mock Excercises

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Alternative Dispute Resolution for IP Cases: Neutral Evaluations and Mock Excercises

Source: Corporate Counsel
Date: March 21, 2017
In today’s economy, the sus- tainability of many companies depends on the preservation of intellectual property rights. As a result, the volume of IP law- suits has grown astronomically. When a business model cen- ters around copyrights, patents, trademarks or trade secrets, these high-stakes cases are the proverbial “bet-the-company” lawsuits. These cases span most industries, but particularly those that have become essential to today’s economy: life sciences, biotechnology, data security, privacy, energy, medical devices, telecommunications and phar- maceuticals. Intellectual property litigation is exceptionally complex, often involving several jurisdictions and multiple parties. This kind of litigation is disruptive for any company but especially when the case’s effects may impact an entire industry. Therefore, IP cases almost always require swift – and sometimes confi- dential – resolution. For many parties, alternative dispute reso- lution may be the answer. When it comes to ADR, law- yers must employ the most appropriate device to achieve the best outcome for the client. Fortunately, in addition to tradi- tional tools like mediation and arbitration, other highly effec- tive processes can help resolve IP cases favorably. Two devices in particular – neutral analysis and mock trials – are especially suited for IP litigation. In both cases, they can be used before, during or after a trial or arbitra- tion, and may be used for iso- lated issues or an entire case. With neutral analysis, or neu- tral evaluation, a party or parties consult with a veteran third- party to evaluate the case’s facts and legal arguments. The result is a non-binding analysis of how Alternative Dispute Resolution for IP Cases: Neutral Evaluations and Mock Exercises Hon. Irma E. Gonzalez (Ret.) corpcounsel.com | Tuesday, March 21, 2017 PRESENTED BY JAMSa fact-finder (a judge, jury, arbi- trator or administrative agency) might decide the case or other proceeding. This kind of expert evaluation can happen at any time, even before a case is filed. Because patent cases can be remark- ably technical for the average juror, neutral evaluation can also help a party decide whether to waive a jury. Similarly, pretrial motions and hearings, includ- ing summary judgment, can be streamlined with neutral analy- sis. Neutrals may also be con- sulted before a mediation or settlement conference. Neutral analysis can also include post-judgment sec- ond opinions in which an appeal’s likelihood of success is assessed. Another exceptionally useful ADR tool for IP cases are mock exercises. Here, a neutral is con- sulted to offer practical tips for refining a case. Specifically, in simulated oral arguments, arbi- trations, jury and bench trials, and Markman and appellate hearings, IP lawyers can experi- ment with trial strategies, prac- tice presenting evidence and arguments and select the most effective witnesses. As with neutral evaluations, the scope of mock exercises can be tailored to the needs of the case. They can include every- thing from opening and closing statements, to the presenta- tion of witnesses, documents or demonstrative evidence, to a full simulated trial. Patent suits, in particular, require finely slicing out overly complex information so the fact- finder can zero in on the most critical issues. It’s crucial that lawyers present the evidence and legal arguments in a com- prehensible way without bog- ging down in technical details. In those cases, mock exercises may be especially helpful to wit- nesses who need coaching and practice explaining complicated concepts to laypeople. The usefulness of traditional ADR tools – arbitration and medi- ation – are long settled. But in the demanding and constantly changing world of intellectual property litigation, attorneys have other extremely useful tools at their disposal. Neutral analysis and mock exercises may not result in a settlement or dismissal of the case, but with customized, expert feedback, the lawyers can proceed with increased confidence and an informed, enhanced strategy. Hon. Irma E. Gonzalez (Ret.) is a mediator, arbitrator and special master for JAMS in San Diego. She was appointed to the U.S. District Court for the Southern District of California in 1992, serving as Chief Judge from 2005 to 2012. Prior to her appointment to the federal bench, Judge Gonzalez served as a Superior Court Judge and a Magistrate Judge. You may reach her at igonzalez@ jamsadr.com. Tuesday, March 21, 2017 Reprinted with permission from the March 21, 2017 edition of CoRpoRate Counsel © 2017 alM Media properties, llC. this article appears online only. all rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com. # 016-04-17-03