The Local: A Legal Thriller

Part i

IN LOCO PARENTIS

In the Place of a Parent

· One ·

Small towns are defined by their secrets. Some are even haunted by them. There is a communal consciousness that remembers everything no matter how hard people may try to forget. You can’t keep a secret in a place like this, at least not forever.

Marshall is only forty miles from the state’s eastern border but still deep in the heart of Texas. Folks live and die with the Mavericks on Friday nights and seek salvation in church on Sundays. Since World War II, the population has remained unchanged at twenty-three thousand souls. It’s almost as if there’s no incentive to come here, but people can’t find a good reason to leave either.

We have an equal number of white and Black citizens, but the scars of inequality run deep. The ghosts of slavery and segregation still roam our streets. To this day, a statue of a Confederate soldier casts a shadow over the town square.

Behind the bronzed effigy of Johnny Reb stands the old Harrison County Courthouse. Its bright yellow facade, marble columns, and domed top make it our unofficial capitol building. Lawyers love a good courthouse the way players love a good ballpark. It makes us believe that our lot in life is more important than it probably is. The best lawyers in these parts, however, don’t work in this building.

Just beyond the hand-laid redbrick parking lot of the old county courthouse stands another building, another courthouse. It’s a simple beige-and-brown rectangle, thirty feet high, with small columns in front. Its demeanor suggests you need not notice it at all. This is the Sam B. Hall Jr. Federal Building, home to the US District Court. For the past twenty years, the Eastern District of Texas has been the epicenter of intellectual property law in the United States. It is Marshall’s best-kept secret.

—

For some reason that morning, as I sat at the plaintiff’s table with my client and a team of lawyers from the Chicago law firm of Rosewood & Barkman, I was overcome with a feeling of awe. It was the final day of my final trial for the calendar year, and I found myself in a moment of reflection. As I looked up at Judge Gardner’s wrinkled face, I couldn’t shake the idea that the kingdom he had built was as impressive as it was improbable, and that we all owed him a debt of gratitude.

There had been whispers around the courthouse for months that the judge was contemplating stepping down. People were even speculating that he would announce his retirement that night at the annual Christmas party. I dismissed these rumors as baseless because I believed he would have told me privately if that were his plan. Still, I’d had a sense lately that he was trying to savor certain moments as if they were passing by, never to return. As he glanced in my direction, I wondered if he felt a sense of pride. I was, after all, his protégé. He had crafted me in his image.

Mr. Euchre? Judge Gardner drew the court’s attention my way without revealing any affection for me. After I’d spent five days sitting quietly beside my client with nothing to do but ponder the wonders of our universe, the time had come for me to do what I’d been hired to do. I was going to deliver a closing argument.

Thank you, Your Honor. I rose to my feet but didn’t button my jacket. I walked toward the eight members of the jury in complete silence. It was the first time they would be hearing from me since they were selected, and I wanted to give them a few more beats. I found my mark and then hesitated, as if unsure of how to begin. Truthfully, I knew every word that was about to come out of my mouth. I was going to deliver my patented Ford pickup closing. As a matter of legal fact, a collection of words, such as a speech, cannot be patented but rather copyrighted. Suffice it to say, it was my favorite summation.

"When I was fifteen years old, the widow who lived next door to me decided to sell her late husband’s truck. It was a 1964 Ford F100 with a cracked windshield, missing fender, and dented grill. Its original Rangoon Red paint job, which perfectly matched the high school’s colors, was peeling and had faded under the sun. It was the most beautiful vehicle I’d ever seen.

"I struck a deal with the widow. In one year, I would buy that truck for twenty-four hundred dollars. Bagging groceries at the Kroger for three thirty-five an hour wasn’t going to cut it, so I got a paper route and started mowing lawns on the weekends. I took any odd job I could find, and for one year, I didn’t spend a penny unless I absolutely had to. Where most boys would keep a picture of their girlfriends in their wallets, I had a photo of this old truck, a reminder of what all the hard work was for. The best day of my young life was when I emptied out my savings account, handed my neighbor all twenty-four hundred dollars to my name, and became the proud owner of a Ford pickup. When I got behind the wheel, a feeling of achievement washed over me. I’d never felt that way before.

Two weeks later, I stepped outside my home with the keys in my hand and discovered that the driveway was empty. I paused here, as if overcome by the memory.

"I’m embarrassed to admit how many minutes passed before I accepted the reality. I’d never owned anything, and now my one possession in the world had been stolen. For weeks, I kept my eyes peeled, hoping I’d spot my Ford abandoned somewhere, just waiting for me to rescue it. Then one day I get a call from Detective Elliot. He says they think they may have found it up in Marion County, but before they go and accuse someone of grand theft auto, they want me to confirm that it is indeed mine.

"So Detective Elliot drives me to Marion, and we pull up to this ratty old house with weeds for a yard, and there, parked right in front for all the world to see, is a 1964 F100 with a cracked windshield, missing fender, and dented grill. I jump out of the cruiser and run up the driveway. Just then, a man in his twenties comes out of the house and hollers at me to get off his porch. I move right to him, fish my wallet out of my pocket, hold the photo of the Ford up in his face like it’s a police badge, and declare, ‘My name is James Euchre, and that is my truck!’

The man looks at the photo and then back at me and says, ‘That can’t be your truck. Your truck is red. That truck right there is black.’ I paused again, allowing the audacity of this comment to infect my listeners.

Not only had this man taken my vehicle, but now, caught dead to rights with my property in his possession, he had the nerve to deny everything because, after he had stolen my beloved truck, he had covered that original Rangoon Red body with a cheap coat of black paint.

For all of the flaws in our legal system, the one thing that we got right was entrusting ordinary people to dispense justice. Even in a field as complicated as intellectual property law, we put our faith in common citizens. Patents can be incredibly complex. It often takes an advanced degree in electrical engineering or microbiology to understand how something works, let alone whether or not the idea behind it was taken from someone else’s design. The lawyers from the firms on both sides of this case had spent the past five days asking these jurors to think. In my first five minutes, I had asked them to feel.

Every one of us has a different capacity to understand information based on who we are, what the subject matter is, and how our education and intellect relate to the issue at hand. What makes us alike, what makes us human, is that we all experience the same range of emotions—the same fear, the same love, the same rage. My job was to distance the jurors from the complicated facts of the case and remind them how it feels when someone takes what is rightfully theirs.

I loved my Ford closing for a lot of reasons, but principal among them was that it genuinely enraged me. By the time I was done talking about the bastard who stole my truck, my own blood was boiling. And emotions are transferable. Of course, I would ultimately bring my discussion back to the issues at hand, but not until every one of those jurors was thinking about their own experience of being wronged—that time someone hit their car and didn’t leave a note, the day their boss took credit for their hard work, that moment when they were victimized by a faceless thief, never to be made whole again. Once that courtroom was overflowing with rage, I turned our collective attention to my client, the plaintiff who was wronged in this case, and I gave the jurors the power to make it right.

—

I stepped toward the plaintiff’s table. Typically, I represented corporations, but in this case, my client was a home economics teacher with arthritis from Skokie, Illinois. Over the years, as Marta Sexton’s condition had worsened, her doctors had prescribed her more and more medication. One day, her hands were in so much pain that she could no longer open her childproofed pill bottle. Frustrated but not defeated, she conceived of a new design for a medicine container that didn’t take much force or a strong grip to open but was still impenetrable to a young person’s inquisitive paws. Inspired by a combination lock on a high school locker, she sketched a design that required a person to line up three designated spots on the pill bottle with three corresponding points on its twisting cap. Once all three arrows on both components were aligned, the top would lift off easily. It was something that any patient could use and no child could hack. Thankfully, Mrs. Sexton filed for a patent.

The United States Patent and Trademark Office is located in Alexandria, Virginia, and is an agency within the Department of Commerce. If you have an invention, or if you have a design for an invention, or if you have an idea for a design for an invention, you can apply for a patent. If someone or some company infringes on that patent, you can sue them in federal court. Which federal court? That’s the billion-dollar question.

One day, Mrs. Sexton was walking through the Hartsfield-Jackson airport in Atlanta when she stopped at a kiosk that sold phone chargers, candy bars, and other travel accessories. On one of the shelves was a variety of medicines. She thought it would be a good idea to take an aspirin before flying. So she bought a bottle of pills and some water and went to her gate. As she prepared to board, she removed the pill bottle, and lo and behold, it was childproofed. To the untrained eye, it may have looked like any other medicine container. But my client saw something different. She understood the specs, the modifications, and every working component of this little plastic contraption right down to the familiar three-part locking mechanism. Her blood, sweat, and tears had gone into inventing this design that someone, or rather some company, had stolen. When her plane landed at O’Hare, her first call was to Rosewood & Barkman.

The company that created the medicine was headquartered in upstate New York, while the pill bottle itself had been manufactured in a factory in Seattle. It was well within Mrs. Sexton’s rights to file her patent infringement suit in either the Northern District of New York or the Western District of Washington, but that was the opposition’s home turf. She also could have filed suit in the Northern District of Illinois, her own backyard. All of these options would have made a lot of sense since these were the venues where the item was invented, where it was stolen, and where the company that profited was based. But what about the Atlanta airport? When an employee at that kiosk put one of those products on their shelves, a product that contained my client’s intellectual property, that was an act of patent infringement. Of course, she wasn’t going to sue the owners of a little kiosk because they don’t have deep pockets, but that didn’t matter. What mattered was this: a lawsuit can be filed anywhere in the country that a single act of patent infringement has occurred. Since Mrs. Sexton was the wronged party, it was her choice where to file suit. With all the kiosks in all the airports in all the country, the options were almost limitless. The best option though, at least for the past twenty years, has been the Eastern District of Texas. The reason is Judge Gardner.

—

Gerald Gardner was born on March 24, 1944, down the road toward Kilgore, next to the old ghost town of Danville, Texas. He grew up playing baseball and football like most boys, but his true passion was acting. He enrolled at Southern Methodist University in 1962 and found his home in the theater department. His favorite professor encouraged him to pursue his craft professionally, but Gardner replied, I have no interest in going to Hollywood or Broadway and I doubt either has any interest in coming to Texas. Not wanting his theatrical training to go to waste, Gardner chose to stay at SMU and earn his law degree.

Good lawyers are performers. It’s not an act, which is to say that it’s not fake, but there is an element of show to it. Gardner turned examining a witness into a mystery. Every closing argument was a soliloquy. People would travel from neighboring counties just to watch him in a big trial. One time, a court even handed out popcorn. True story.

Every law firm from Houston to El Paso tried to recruit him, but he didn’t want to work for anyone else. He was content taking whatever clients happened to come his way in East Texas. He was also adept at creating opportunities seemingly out of thin air.

One such job involved an oil and gas company from Lubbock that needed to resolve a land rights issue. It didn’t bring in significant business, but Gardner secured the deal and managed to impress the executives, one of whom was a young man by the name of George Walker Bush. Decades later, when a federal judgeship in East Texas became available, one of our US senators recommended Gerald Gardner. President Bush nominated him the following Monday.

To say that Gardner was inheriting an unimportant venue would have been an understatement. The Eastern District wasn’t exactly a hotbed of criminal activity or major litigation. But Gardner wasn’t the type of person to rest on his laurels. The dearth of cases was a blessing because it gave him the freedom to reinvent his court how he saw fit. In his entire career as an attorney, Gardner had only had one patent case. It was, as patent trials tended to be, a clusterfuck. But where there was chaos, he believed he could create order.

Judge Gardner overhauled the whole trial process. First, he allowed for broad discovery of materials so that lawyers couldn’t drag things out indefinitely with pretrial motions. Second, he set trial dates in stone. There would be no delays, no excuses. More than a few attorneys had to miss the births of their children so that they could appear in Gardner’s courtroom as scheduled. And third, he limited the lengths of the trials themselves. In most jurisdictions, a typical patent case could last weeks, sometimes months. But Gardner believed, If God can create the universe in six days, surely we can finish a patent trial in less time. Five days was his limit.

With these changes, EDTX had the capacity to become one of the most efficient and effective courts in the entire country. It took a little time, but eventually the legal world realized that the new judge had designed the perfect place to sue for patent infringement.

—

So where did I come in? Lawyers are licensed to practice law in specific jurisdictions, namely in the state or states where they have passed the bar exam and where their law firms are based. When a case takes lawyers out of their jurisdictions, they need to add someone within the new state to the team. That someone is called local counsel.

A local can do as much or as little as the rest of the team demands. Often, a local counsel does nothing more than advise the team on any unique quirks of that particular venue and serve as a signatory on any documents that need a regional John Hancock. All of this can be done for a nominal fee. Clients may never even realize that a local is on their team. That’s how it used to be in Marshall. After all, intellectual property law is complex, and no one in East Texas had ever tried a patent case. Lawyers here, though, had other skills that aren’t taught at top ten law schools. It didn’t take long for white-shoe law firms to discover that something was missing, something essential that local counsels could provide.

Here’s a scenario that happened too many times to count. A twin-engine Cessna Citation with the inevitable moniker Law Firm One touches down at the quiet Harrison County Airport. Six attorneys step off their firm’s jet, all wearing bespoke suits purchased on Madison Avenue. A private car, probably from Dallas, picks them up and drives them five miles, past broken fences and run-down trailers, into town. They march into the courthouse with Italian leather briefcases and polished expert witnesses. A casual observer may understand that this doesn’t go over too well with our juries, but rich and powerful people often lack self-awareness. There was a major disconnect between our humble citizens of Marshall and these corporate attorneys from big cities. To make matters worse, some of these people thought they could fake their way into the good graces of the jurors. I’ve seen out-of-town lawyers go straight from the airport to the Boot Barn on Pinecrest Drive, buy a pair of shiny new Buckaroos, and then walk their blistered feet into court as if they’ve just come from the ranch. Mistakes like this have cost clients millions.

The top patent law firms around the country began to realize that what was missing from their teams was someone who spoke the language, someone who could connect with the eight citizens on the jury. The more we locals were asked to speak, the more the jurors seemed to listen. Locals, who for so long had been undervalued and underused, were finally being called upon to perform an indispensable service. Like strong pinch hitters and clutch relief pitchers, our roles were small but vital. And we began to be paid accordingly.

So it came to pass that the best trial lawyers were not in Houston, Austin, or Dallas but rather in a small corner of the state, practicing an area of law that none of us had ever studied, working on cases worth tens or even hundreds of millions of dollars. We were the final component to a billion-dollar industry, a magnificent legal universe created by one visionary judge in Marshall, Texas.

· Two ·

I concluded my summation and returned to my seat, where I would spend the rest of the morning watching an attorney for the defense deliver his closing argument. My work was done, and I felt it had gone well. I’d made the desired connection with the jurors and hoped I’d left them with the feeling of rage. If all went according to plan, they’d deliberate swiftly, return a verdict in favor of my client, and award her a nice chunk of change.

Once this case was completed, I would have five weeks of nothingness in front of me, as December faded into January. After remaining relatively sharp and clear-eyed for the trial, my plan was to drink my way into the darkness and emerge in the new year rejuvenated, even if I would be a little worse for the wear. If the verdict was good, my night would inevitably begin with a champagne celebration. If it was bad, I’d crack a beer and begin my descent alone on a barstool. Either way, I’d end the night with a solitary bottle of whiskey that was waiting for me at home. I had a feeling I’d be tasting the bubbly before the night was through.

During my closing, I had noticed a familiar face in the rear of the courtroom. I spun around in my chair to take a second look. Abraham Rabinowitz, a top lawyer from New York, was sitting in the last row. He was dressed sharply and his silver locks, despite being wet and combed back, were beginning to break free into their natural state, which resembled a lion’s mane. On either side of him were a man and a woman whom I did not recognize, though I assumed were his clients. They were both considerably younger than he was. I gave Abe the slightest wink, and he nodded back. Whatever he wanted would have to wait until the next recess.

The defense gave a ninety-minute closing argument, during which I saw two jurors nod off. It was an unceremonious conclusion to a case they hadn’t presented particularly well. The court reporter distributed Gardner’s written instructions to the jury. Someone along the way had screwed up because there were seven copies instead of eight.

Don’t worry about mine, Judge, said Juror Number Three. I can’t read none anyway.

The Chicago lawyers couldn’t hide their contempt. A complicated patent design and a verdict worth millions were about to be in the hands of eight people with six high school degrees between them, one of whom was apparently illiterate. It was classic EDTX, and I loved it.

Well, you’d better listen extra close then, sir, said Judge Gardner. His Honor read the instructions aloud, and then the jury retired to the deliberation room. There was nothing left to do but wait.

As I expected, Rabinowitz motioned for me, and I held up my index finger to let him know I’d be there in one minute. Abraham Rabinowitz, or Honest Abe as I liked to call him, was a top litigator at the Manhattan-based firm of Gordon & Greene. He couldn’t have looked less like Abraham Lincoln if he tried. He was a short man whose midsection was shaped remarkably similarly to the matzo balls his mother used to make. Originally from the Brownsville neighborhood in Brooklyn, Abe was, to me, the quintessential New Yorker. I called him honest, but more accurately he was blunt. He simply didn’t have time for bullshit. I admired him for this, and our juries often embraced him because he didn’t pretend to be anyone other than his authentic self.

Abe’s firm specialized in intellectual property law, so it handled a lot of cases in Marshall, and while he used the services of a few locals, I was Abe’s favorite. We shared a similar perspective on how the game should be played and an appreciation for the other’s roles in it. We also won a lot more than we lost.

As I approached him, he stepped away from the man and the woman with whom he’d been sitting so that we could speak alone.

Jimmy! You looked good out there today.

Thanks, Abe.

I give it a nine-point-three. You started out strong, but you didn’t stick the landing.

Everybody’s a critic.

I grade you on a steep curve.

I didn’t know you were in town, I said, putting an end to my performance review.

Just for the day. We have an eligibility hearing this afternoon.

In front of Gardner?

It was supposed to be downstairs with the magistrate judge, but since you guys have this wrapped up early, maybe Gardner will hear it after all.

Those are your clients? I asked, motioning to the couple in the back, who looked uneasy in their unfamiliar surroundings.

He’s the client. She’s new to our firm.

At second glance, she did dress the part of an attorney. I should have pegged her as a lawyer. Despite the fact that half of the prospective jurors in Marshall were Black, it was still rare to see a Black attorney in EDTX. Aside from general racism in hiring, the prevailing wisdom was that a Black attorney was more likely to alienate our white jurors than gain the support of our Black ones. It had taken an embarrassingly long time for firms to finally begin to reject this theory. In addition, the firms that had expanded their hiring practices were discovering not only the benefits of diversity but also a great deal of untapped talent.

Any chance you can join us for lunch? Abe asked.

I looked back at the plaintiff’s table with Mrs. Sexton and the Chicago lawyers. I’d been eating with them all week and was getting tired of hearing about how much better the food was in the Windy City.

I’ll see if I can sneak away.

Abe leaned in toward me. This client’s going to be spending a lot of time in Marshall. That was music to my ears. I preferred representing plaintiffs, but a defendant who gets sued repeatedly can bring in a lot of business. I nodded, letting Abe know I’d make it to lunch one way or another.

Hey, Jimmy, let me ask you something. I stopped and waited for his question. Did you ever actually own a Ford pickup?

I grinned. Not a lot of people would have had the balls to ask me that outright. Come on, Abe. All the best stories are true.

—

I broke off from the Chicago lawyers and exited the federal courthouse. As I walked across the brick parking lot, I spotted the district attorney, D. Calvin Lucas, and two of his underlings heading toward the old Harrison County Courthouse. This must be where the real lawyers are at, I said as our paths crossed.

It’s not patent law, but we can’t all do God’s work, replied D-Cal, as those of us who’d known him since grade school called him. He was a special breed of asshole. He was a born politician, and everyone expected that the DA’s job was just a stepping-stone to his higher aspirations. I figured he was a good enough attorney, but he suffered from big-fish-in-a-small-pond syndrome. He was a prosecutor in