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APPELLATE LITIGATIONS
LEGAL CUSTODY
Personal Injury Litigation
Personal Injury Litigation
Legal Custody
- Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child.[1] Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.[2]
- Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as parental responsibility, "residence" and "contact" (also known as "visitation", "conservatorship" or "parenting time" in the United States) have superseded the concepts of "custody" and "access" in some member nations. Instead of a parent having "custody" of or "access" to a child, a child is now said to "reside" or have "contact" with a parent.[3]
Personal Injury Litigation
Personal Injury Litigation
Personal Injury Litigation
How Litigation Works in a Texas Personal Injury Case
You've been hurt. The person who caused your accident refuses to admit it was his fault and won't pay for the damages caused. What now? You have two options: 1) do nothing or 2) get the legal system involved. Option 1 is foreign to us, and because you're reading this, likely not what you're considering either. Option 2 is what this article, and subsequent articles related to this topic, are all about.
In our society, there are no forms to fill out with some governmental body that says you've been hurt and you deserve to be compensated. Further, while our grandparents may regale us with claims that "back in my day, when we did something wrong, we owned up to it and fixed the problem," our culture seems increasingly averse to taking personal responsibility for our actions. Therefore, what you need is someone or some entity to impose justice. In America, that's the court. Litigating a case is invoking the court's authority, making a claim that you need justice, and asking the court to use the power it has to force the person or company that hurt you to pay up.
Questions Answered on This Page:
- How does litigation work in a personal injury case?
- What is the litigation process?
- How does litigation work in the state of Texas?
Without getting too high on our soapbox, the courthouse is often the only place where everyone is given a fair chance. When done correctly, the biggest company in the world and a lone individual without any resources are on an equal playing field. "Litigation" is what we call the playing field. There, the plaintiff and defendant each have their chance to find out what happened in the accident, who's responsible, who suffered what, and then develop their side of the story to a jury. The reason big companies and wealthy individuals are willing to spend so much money on their own lawyers is because the court has the power to force them to pay for what they have done.
Occasionally, litigation happens in different forums than courts. The "court" may be an arbitrator or a state agency. But the point is the same: you're asking someone with power to use that power on another person to get you something.
Over 25 years, we've litigated each stage of a case countless times
Below, we outline the main stages of the litigation process. There's a lot to cover and can feel intimidating, but our attorneys have been down this road for literally thousands of people already. We just want you to have an idea of the journey ahead.
Every case follows the same pattern:
- Selecting the appropriate court venue: The Texas rules about where your case can be filed are complex. This matters because where your lawsuit is filed (called the venue) can increase or decrease the value of your case dramatically.
- Establishing your right to be there: Courts must have "jurisdiction" over your claim. Just like you'd assume that a federal tax court is not where to file a divorce case, there are very specific rules about who is allowed to litigate a case and where.
- Filing the lawsuit: The lawsuit itself is the formal document that starts the case. It explains to the court in general terms why you're there, what the defendant did, and why you're entitled to money
- Conducting discovery: It's vital to have all the facts. Under Texas rules, litigants must exchange relevant information and evidence so the truth can be found.
- Holding depositions: Witnesses can be placed under oath before trial and asked everything they know about the case.
- Mediating the case: Before a full-blown jury trial, courts always order parties to try and settle. They then meet with a "mediator" who attempts to facilitate a settlement.
- Going to trial: If no settlement occurs, it's off to the courthouse. There, the lawyers argue to the jury why their clients are right.
- Arbitration: If the parties had previously agreed to submit any disputes to a private arbitrator rather than a court, the case is decided outside the court system.
Applying the rules of court: Throughout the litigation process, attorneys must follow intricate rules about evidence, how and when to file specific documents, and how to object
Federal Court Litigation
Personal Injury Litigation
Federal Court Litigation
Chronology Of A Federal Court Case
While some disputes can be resolved between the parties absent any formal legal action, others require a lawsuit. Intellectual property cases are usually filed in federal court due to federal laws that oversee trademarks, copyrights, and patents.
The federal court system can vary significantly from California state courts and attorneys must be specifically licensed to represent clients in particular federal districts. The federal civil justice system is governed by the Federal Rules of Civil Procedure, which set out timelines, deadlines, and requirements for every step of the litigation process.
At Mandour & Associates, our intellectual property attorneys have extensive experience representing clients in federal court. We understand the federal case process and ensure we are familiar with all the necessary requirements to best represent our clients’ interests and rights.
The following is a brief overview of the chronology of a federal court case.
FILING PLEADINGS
Pleadings are formal documents that a party officially files with a court that set out the party’s basic positions and arguments in the case. Every legal action begins with the filing of a complaint, which states the allegations regarding the infringement of the intellectual property and facts to support those allegations. Notice of the pleadings and court summons must be formally served on the defendant in accordance with specific rules.
Once service is achieved, the defendant will have a certain period of time to reply to the complaint which is usually 21 days. Such a reply can include an answer setting out facts in the defendant’s defense or denying facts in the complaint, motions to dismiss the complaint, and counterclaims against the plaintiff. If the court denies all or even part of a motion to dismiss, the case will proceed.
The court may schedule a case management conference where the attorneys will confer to discuss the schedule for litigation, limits of discovery, and other stipulations of the case. This is also an opportunity to discuss the possibility of mediation or other forms of alternative dispute resolution to explore whether the case can be resolved without formal litigation. However, if the matter cannot be resolved in an alternative way, the litigation process will continue.
THE DISCOVERY PERIOD
Discovery is one of the most time-intensive components of a federal case, as both sides want to gather as much information and evidence as possible from one another to build their claims and defenses. There are many different rules regarding what types of information are discoverable, methods of discovery, limits on discovery, and more.
Discovery can be achieved in different ways, including:
- Interrogatories – This is a formal list of written questions to be answered by the other party. The number and scope of interrogatories are limited by the federal rules, as are the time requirements for responding to interrogatories. These answers are provided under oath and can be used in a case in accordance with the Federal Rules of Evidence.
- Requests for Production – This is a formal request for the other party to provide you with certain documents, electronically stored information (ESI), or types of physical evidence that may be used in a case.
- Depositions – A deposition involves asking questions of witnesses, which they must answer under oath. However, unlike witness testimony at trial, depositions happen outside the courtroom and the rules of evidence are less stringently applied. Depositions can be used to learn information from witnesses and to challenge any contradicting testimony at trial. They are also used if the witness will not be available for trial.
- Experts – Many intellectual property claims involve expert opinions regarding technical matters to prove infringement occurred—such as the similarities between two trademarks to prove trademark infringement. Experts can also give opinions on the economic effects of infringement and such analysis is discoverable information.
MOTIONS FOR SUMMARY JUDGMENT
Typically when the discovery period ends is when a party files a Motion for Summary Judgment. Such a motion can end the case at least to particular issues, and as such can be effective to limit the issues at trial.
SETTLEMENT NEGOTIATIONS
Settlement negotiations can take place at any time during litigation. Sometimes, all it takes is the filing of a complaint for a party to agree to a settlement. In other situations, information learned during discovery can help you to build a strong enough case that the other party agrees to a settlement. The reality is that most cases settle and few go all the way to trial.
GOING TO TRIAL
If settlement negotiations are not succeeding, formal trial preparations will begin. This can include filing pretrial motions with the court and having your attorney attend hearings to argue pretrial matters. If your case proceeds to trial, the following may occur:
- Jury selection
- Opening statements
- Presentation of evidence and witnesses by the plaintiff, including cross-examination
- Presentation of evidence and witnesses by the defendant, including cross-examination
- Closing arguments
- Instructions to the jury by the court
- Jury deliberation and delivery of the verdict
Appellate Litigation
Intellectual Property Litigation
Federal Court Litigation
What is Texas' court structure?
State Courts
Texas' court system has three levels: trial, appellate, and supreme.
Trial: The trial level, or local, courts are the most numerous, consisting of over 450 state district courts, over 500 county courts, over 800 Justice of the Peace courts, and over 900 municipal courts. These courts handle the vast majority of legal matters in Texas. For more information about Texas trial courts, see here.
Appellate: Most cases start out at the trial level, and most end there as well. However, if a party is unhappy with the outcome of their case, they can appeal it to one of the 14 state appellate courts. The appellate court will review the trial court's work and decide whether to consider the appeal. If a party is unhappy with the outcome of the appellate case, they can appeal it further up to the one of the courts of last resort.
Supreme: Unlike most states, Texas has two courts of last resort, also called supreme courts. Like the appellate courts, these courts consider cases that are appealed from the lower courts. They also hear cases appealed from the federal Fifth Circuit courts. The Texas Supreme Court hears civil appeals, while the Texas Court of Criminal Appeals hears criminal cases, including death penalty appeals.
Federal Courts
Trial: There are four federal district courts in Texas. They consist of the United States District Courts for the Northern District of Texas, the Eastern District of Texas, the Southern District of Texas, and the Western District of Texas.
Appellate: Texas is part of the Fifth Circuit Court of Appeals, which hears all appeals from these federal district courts.
Supreme: Appeals from decisions rendered by the Fifth Circuit Court of Appeals go to the U.S. Supreme Court or, in some circumstances, the Texas Supreme Court or Texas Court of Criminal Appeals.
FEDERAL COURT APPEALS
The Process
Although some cases are decided based on written briefs alone, many cases are selected for an "oral argument" before the court. Oral argument in the court of appeals is a structured discussion between the appellate lawyers and the panel of judges focusing on the legal principles in dispute. Each side is given a short time — usually about 15 minutes — to present arguments to the court.
Most appeals are final. The court of appeals decision usually will be the final word in the case, unless it sends the case back to the trial court for additional proceedings, or the parties ask the U.S. Supreme Court to review the case. In some cases the decision may be reviewed en banc, that is, by a larger group of judges (usually all) of the court of appeals for the circuit.
A litigant who loses in a federal court of appeals, or in the highest court of a state, may file a petition for a "writ of certiorari," which is a document asking the Supreme Court to review the case. The Supreme Court, however, does not have to grant review. The Court typically will agree to hear a case only when it involves an unusually important legal principle, or when two or more federal appellate courts have interpreted a law differently. There are also a small number of special circumstances in which the Supreme Court is required by law to hear an appeal.
Different types of cases are handled differently during an appeal.
Civil Case
Either side may appeal the verdict.
Criminal Case
The defendant may appeal a guilty verdict, but the government may not appeal if a defendant is found not guilty. Either side in a criminal case may appeal with respect to the sentence that is imposed after a guilty verdict.
Bankruptcy Case
An appeal of a ruling by a bankruptcy judge may be taken to the district court. Several courts of appeals, however, have established a bankruptcy appellate panel consisting of three bankruptcy judges to hear appeals directly from the bankruptcy courts. In either situation, the party that loses in the initial bankruptcy appeal may then appeal to the court of appeals.
Appeals are decided by panels of three judges working together. The appellant presents legal arguments to the panel, in writing, in a document called a "brief." In the brief, the appellant tries to persuade the judges that the trial court made an error, and that its decision should be reversed. On the other hand, the party defending against the appeal, known as the "appellee," tries in its brief to show why the trial court decision was correct, or why any error made by the trial court was not significant enough to affect the outcome of the case.
Other Types of Appeals
A litigant who is not satisfied with a decision made by a federal administrative agency usually may file a petition for review of the agency decision by a court of appeals. Judicial review in cases involving certain federal agencies or programs — for example, disputes over Social Security benefits — may be obtained first in a district court rather than a court of appeals.
Corporate Litigation
Intellectual Property Litigation
Intellectual Property Litigation
A beginner's guide to commercial litigation: star lawyers tell us how it works and how you can prepare.
“Litigation is king in the US” “We're a law focused country and everyone has to get their day in court.” And while dreams of breathtaking courtroom showdowns might have propelled you through long hours of exam prep, it's healthy to remember it's not about you and always about the client. For risk-adverse companies, nothing brings dread like the prospect of litigation. So you need to become a commercially astute student who can wrap their head around the business ramifications that legal advice and litigation can have on a company. We drew on interviews with hundreds of junior litigators across the US and collared some of the nation's top commercial litigators to help you on your journey.
What exactly is commercial litigation?
Commercial litigation encompasses disputes and litigation which “go to the core of a company's business strategy and business implementation,” Cravath's Evan Chesler explains. “There is litigation which is quite peripheral to a company's core business and litigation which is directly related to it. If someone falls in your parking lot and sues, that's not core to your business but if you're an entertainment company and people are duplicating your copyrighted content, that is core to your business.”
Examples of commercial litigation include but are not limited to:
Securities litigation
Fraud lawsuits filed by investors against issuers of securities.
Contract breaches
Exactly what it says: if one company fails to uphold a legal clause in a contract with another, civil proceedings can ensue.
IP litigation
Infringements of patents, trademarks and copyright.
Antitrust litigation
Handles allegations that a company's business practices don't comply with competition regulations. Proceedings can be criminal or civil.
Regulator run-ins
Companies who step outside an industry's regulations face investigations, and civil and criminal prosecutions. Law firms usually refer to this litigation by industry e.g. environmental.
Consumer class actions
A group of consumers take on a company over issues like fraud, mislabelling, privacy violations or defective products.
“It's anything which involves commerce and business; it really runs the gamut of that broader spectrum,” Gibson & Dunn's Randy Mastro sums up. But don't get it confused with corporate litigation which technically covers the activities of the corporation itself – e.g. shareholders' disputes – as opposed to what the business does (although many law firms do include these disputes within their commercial litigation groups).
Litigators can act as generalists or specialists. Some firms encourage their attorneys to specialize after a certain number of years, while others actively promote generalists. Each law firm does it differently – our reviews will go into this detail.
Talking point
“Over the last 20 years litigators have become increasingly specialised. I think clients aren't as well served by siloed practioners as they are by generalists. You need a litigator who can look holistically at a situation and understand how each part interacts with another. A corporate crisis, for example, affects employment issues and contractual relations while also posing a risk for directors' litigation.”
Intellectual Property Litigation
Intellectual Property Litigation
Intellectual Property Litigation
ur intellectual property litigators have been involved in many of the cases that have defined the scope of intellectual property rights. These cases resulted in decisions of the Supreme Court of the United States or of the Court of Appeals for the Federal Circuit, the special appeals court for patent cases. Representative lawsuits include College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., a case that resulted in two Supreme Court decisions defining the limits of applicability of federal patent and trademark laws to state entities; Nobelpharma AB v. Implant Innovations, Inc., a Federal Circuit decision affirming a major award of damages to our client for the plaintiff's antitrust violation in attempting to enforce a patent procured through fraud; and Markman v. Westview Instruments, Inc., which resulted in decisions of the Federal Circuit and the Supreme Court establishing that interpretation of patent claims is a question of law to be decided by a judge rather than by a jury, in what have become known as "Markman" hearings.
In today's legal environment, however, only a small percentage of cases go to trial. Thus, it is crucial that you have counsel who is focused on your business objectives and the most cost-effective means of achieving those objectives. If a creative business resolution is in order, we will litigate the case in a manner that will drive the case toward such a resolution. We also have extensive experience in the use of alternative dispute resolution mechanisms. From the outset of each case, we explore with our clients the potential risks, opportunities and costs associated with various strategies for dispute resolution, including litigation, mediation, arbitration, and negotiated settlements.
With Duane Morris, your legal representation is being provided by attorneys who have handled intellectual property cases of all kinds, including patents, trademarks, trade secrets and copyrights. Our clients include businesses large and small, universities and individuals. We can litigate cases in a cost-effective manner in any venue, whether it be state court, federal district court, the Court of Appeals for the Federal Circuit or the International Trade Commission.
Patent Litigation
Duane Morris patent litigators have handled disputes in fields such as biotechnology, pharmaceuticals (including ANDA-related litigation), medical devices, semiconductor manufacturing, television set-top boxes, internet and email related technologies, optical disc technology, holographic imaging systems, data encryption, factory automation, vibration and tilt sensors, oil field tools and drilling fluids, marine seismic exploration, flare ignition systems, water treatment and purification, electrical components and fiberglass boat manufacturing. Our patent litigators combine mastery in trial advocacy, an in-depth knowledge of patent law, an aptitude for science and technology and a focus on our clients' business objectives. We represent clients in enforcing their patents, defending against claims of patent infringement, and disputes concerning inventorship and ownership of patents, and patent licenses. Duane Morris lawyers provide counsel regarding government contract disputes and procurement claims. The firm's litigators have played a leading role in some of the most important cases in the field of patent law, as well as some of the most complex (including one of the largest patent cases ever tried before the International Trade Commission).
In every patent case, our litigators either have the necessary technical knowledge or work closely with patent specialists who have such technical knowledge. Dozens of our attorneys practice before the United States Patent and Trademark Office (USPTO). Our attorneys hold technical or scientific degrees in fields such as computer science, electrical engineering, petroleum engineering, geology, mechanical engineering, chemistry, chemical engineering, physics, nuclear engineering, microbiology, molecular biophysics and biochemistry. We have experience in all aspects of patent law, including patent preparation and prosecution, clearance opinions and interference proceedings, and portfolio management. Our approach to patent litigation makes it easier for our clients to transfer complex technical information to our attorneys and enables us to present that information to judges and juries in a simple and persuasive way.
Duane Morris attorneys' combination of extensive trial experience as lead counsel in litigation before state and federal courts, as well as unique trial experience within the U.S. Patent and Trademark Office, can help clients take advantage of, and respond to, inter partes review (IPR). Duane Morris attorneys advise clients on the merits and desirability of instituting parallel proceedings before the USPTO as well as with regard to defending their patents during these proceedings. Duane Morris has represented clients in a wide range of technology and life sciences areas, including Hatch-Waxman matters, as IPR remains a viable option for generic drug companies to challenge asserted patent claims.
Trademark, Trade Dress and Unfair Competition Litigation
In trademark litigation, we focus on protecting the goodwill and brand value that our clients have worked to develop through their trademarks and trade dress. Our attorneys handle an array of trademark, trade dress and unfair competition disputes, including those concerning Internet domain names, consumer product trademarks, business names, trademark dilution, trademark counterfeiting, false advertising, and clothing and accessory designs and other forms of trade dress.
Our litigators counsel clients on the most effective strategies for protecting their trademarks, whether registered or protected under common law. We prosecute and defend trademark and unfair competition lawsuits in state and federal courts throughout the country as well as internationally, and we have extensive experience in seeking and defending against preliminary injunctions. We handle proceedings before the United States Patent and Trademark Office, including oppositions to pending trademark applications and petitions to cancel existing registrations. Our attorneys also represent clients in disputes concerning Internet domain names under the Uniform Domain Name Dispute Resolution Policy of ICANN (the Internet Corporation for Assigned Names and Numbers). We also have designed and implemented international brand protection programs, including on behalf of major automobile manufacturers.
Trade Secret Litigation
Our attorneys have handled trade secret litigation concerning a range of diverse technologies. Duane Morris litigators prosecute and defend claims of trade secret misappropriation in both state and federal courts across the country. As in patent litigation, we assemble teams of attorneys with both trial experience and technical knowledge to present complex issues in a comprehensible, persuasive manner.
Copyright Litigation
We assist clients in enforcing copyright claims and defending claims of infringement in a wide variety of areas, including computer software, as well as literary, architectural, musical, pictorial, audiovisual, sound recording and other works. Our lawyers have obtained ex parte orders to seize counterfeit goods under both the copyright and trademark laws.
Duane Morris IP Portal
Understanding the constant cost pressures clients face, Duane Morris leverages its significant knowledge of how to cost-effectively manage global IP portfolios by offering its patent and trademark clients Web access to our firmwide case management system, the Duane Morris IP Portal. Duane Morris has implemented the Patricia® system to automate and streamline the many thousands of United States and foreign patent and trademark portfolios owned by our clients. Through the Duane Morris IP Portal, clients can access—at no cost—a wealth of information about their patent and trademark portfolios, useful in litigation preparation as well as renewals and other management activity.
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