Patent cases don’t often end up in trial. Despite that fact, as a patent litigator approaching my ninth year in practice, I have always enjoyed the thrill of being in court. Arguing in front of a jury has been one of the best parts of my job, even if it doesn’t happen all that often.
I have been able to enjoy the experience because of my annual participation in the WSBA’s Trial Advocacy Program (TAP). I attended my first TAP CLE in 2010 and have only missed a single instance of the program over the last nine years. TAP, more than anything else, prepared me for trial. Whether you are a first-time trial attorney or a seasoned pro, I strongly recommend you attend the program to see its immense benefits firsthand.
The Benefits of TAP
I signed up for the CLE for a simple reason: Even though trials are rare in my line of work, I wanted to be ready when one of my cases ultimately went before a jury. I feared the prospect of being unprepared about the basics of trial practice with a client’s case on the line. Until TAP, my only pertinent experience had been through several law school mock trials. While useful, they did not instill a great deal of confidence in my ability to excel in the courtroom. I learned from the mocks that asking non-leading questions is difficult. Handling objections to poorly formed questions is even more challenging. And cross-examination, which can be a valuable tool when done well, can leave an unprepared lawyer looking quite foolish. Coming out of law school, I had a lot more to learn.
TAP, with its terrific instructors and well-run mock trial, provides that education. The two-day classroom portion of the CLE begins with a detailed explanation of the importance of jury selection and ends with an overview of how to give a closing argument. The teachers bring the subject matter to life using real-world examples and war stories from their own cases. Year after year, the WSBA enlists the help of some of Washington’s best judges and lawyers to teach the TAP students about the inner workings of a trial.
Perhaps the best pitch I can make for the value of TAP and its teachers comes from my own example: Despite nearly a decade in practice, I continue to sign up for the program and learn something new and valuable every time.
The same is true for the mock trial that’s held about two weeks after the classroom session. I always participate in the TAP trial and put the lessons learned in the classroom to the test in front of local judges and juries. I am grateful for the incredible behind-the-scenes effort that the WSBA staff do to organize this event. It allows participants to try an entire criminal or civil case in a setting that emulates an actual courtroom, but without the risk of upsetting a client if things don’t go their way. Unlike the real thing, the TAP judges provide feedback to the lawyers about how to improve their presentations in the future. And unlike the real thing, in recent years the lawyers have been able to listen to the jury deliberate about their case. Nothing opens your eyes quite like hearing a jury critique your arguments.
Putting TAP to the Test
I missed one year of the program because I was in federal court for a patent trial. I handled two witnesses in that case, a direct and cross-examination. I prepared for them like I had done for the TAP trial, and it paid off. My examinations went smoothly. That was not the case for some of the opposing lawyers.
They were all very good attorneys with many years of experience. Despite that fact, they made mistakes that TAP taught me to avoid. And the judge pointed out those mistakes in front of the jury. For example, he reprimanded opposing counsel for asking too many leading questions, commenting that “[y]ou are well-experienced counsel … giving him the answer and telling him to say ‘yes’ or ‘no’ is leading. You know that.” He finished with a warning: “I’m flat out telling you no more hints. Stop this giving him the answer and then asking him to say ‘yes’ or ‘no.’”
Fortunately, I was able to avoid such rebukes because of the training I had received from my TAP instructors.
We prevailed in that case with the jury awarding our client over $20 million. I cannot speak for the rest of my team, but what I learned at TAP gave me the practical knowledge and confidence I needed to succeed at trial.
My Parting Thought: Everyone Who Plans to Try a Case Should Participate in TAP
I encourage the other litigators in my office to attend TAP and hope I have shown why you should do the same. After all, you cannot be ready for trial without first practicing for trial, and the WSBA offers a terrific training opportunity for lawyers of all levels. I will be at the CLE again this year. Perhaps I’ll see you there.
Dario A. Machleidt. Dario is a senior associate in the Patent Litigation group at Kilpatrick Townsend & Stockton LLP, a leading international law firm with over 600 attorneys across 20 offices. He received a B.S. in physics from the University of Washington and his J.D. from the University of Washington School of Law. Dario serves on the Executive Committees for the Seattle Intellectual Property American Inn of Court and the WSBA IP Section. His interest in improving his trial skills also led him to serve as a Special Deputy Prosecutor in the King County Prosecuting Attorney’s Office. Dario can be reached at dmachleidt@kilpatricktownsend.com.
