Friday, October 14, 2011

Ugh, Associates Bother Me And So Does The America Invents Act

I'm a total perfectionist.  It's a flaw.  You know how when they ask you in job interviews what your biggest flaw is, and you try to think of something that is actually a positive, but can be considered a flaw and you end up with "perfectionist" and expound upon that?  Well, flaw or not, I want everything with my name on it to be perfect.

I am crazy fucking busy right now.  The America Invents Act has thrown some chaos into the world of patent law from a plaintiff's persepctive.  We used to be able to file a case against multiple defendants on the same patent.  One case, two to five defendants, one or more patents.  No longer.  You now have to file separate cases against each defendant.  This really hurts the independent inventor who has to now pay filing fees and potentially pro hac vice fees in multiple cases.  (This can run into the thousands easy.)  What's funny is that the law as it was prior to the America Invents Act, prevented this anyway.  Plaintiffs did it because it was easier to deal with everyone at once in the same lawsuit when they were all accused of infringing the same patent.  Defendants did it because it was easier for them, too.  No one complained.  In the seven years I've been doing this, I've never had a defendant complain about being joined or file a motion for severance.  If they had filed a motion to sever, they would have won under the old law!  So, how about that?  Because even if you are a defendant, you benefit from being with others in the same lawsuit.  You can free ride if you want to, on the work of others.  You can join their motions; you can share technical experts on invalidity issues; you can cut attorneys fees on deposition time.  You get joint defense privilege to talk amongst yourselves without it being discoverable.  I mean, it really was an efficiency thing for all.  And now Judges across the country are going to have to construe the claims of the same patent at issue in other cases.  Maybe it will turn into a multidistrict litigation deal, maybe there will be consolidation, who knows? It's all new, and we'll find out.  And at the end of the day....I don't think it is going to be a good solution for anyone, and I think the Judges are going to be pissed off to see all of these cases sitting around on their docket, when in the past it would have been one single case.  So, at any rate, I've now got a lot more cases going on than usual, because we have to file separately against every single infringer, so there are that many more dates and whatnot to keep track of. 

I've got this associate who works very hard, graduated at the top of her class, and is capable of very good work.  I like her and think she is very smart.  However, I don't think she proofreads anything.  It's bizarre.  She sends me draft interrogatory responses with the defendants' name spelled wrong.  Multiple, multiple typos throughout.  People's names spelled wrong.  Numbering wrong.  Substantive facts just wrong.  I mean, stuff that she should know better, as she is 3-4 years in.  Everyone makes typos at times, but this is beyond.  It's a total rush job.  And I get it that she is busy, because I am busy, too.  But her rushing it over to me doesn't make my life any easier because I have to spend time correcting all of it.  I shouldn't have to correct a fucking spelling mistake on the defendant's name, right?  I shouldn't have to double check on substantive issues.  I'm supposed to be able to trust that she did it, and I don't think she is doing it.

So, she had previously planned to take today off, which is fine.  But we were trying to serve requests for admission, among several other documents, and for various reasons our local counsel in the jurisdiction needed to serve them.  I've been bothering her for weeks about getting a draft out, etc.  She finally schedules a meeting with all of us (and sent us the drafts before, to be fair to her) on Wednesday.  We had the meeting, she revised with all of our input, thought it was all good, sent to local counsel to serve, and obviously wasn't in today to deal with the aftermath.  So, of course there were a ton of stupid errors that I had to deal with, some substantive.  I spent about half the day going back and forth with local counsel about spelling, corrections, numbering, getting repeated signatures on declarations, and all this bullshit that I thought she had a handle on.

I'm really pissed off about it, and am going to talk to her on Tuesday.  She frankly should've had this all dealt with and finalized with local counsel before she left.  I don't care if she's busy; I'm busy, too.  We are all busy.  She just seems to have no concept that our name is on this, and there shouldn't be stupid typos, and there certainly shouldn't be huge substantive errors.  Nothing bothers me worse than seeing a dumb typo on a filed document.  At this point at my firm, she should be able to run a case on her own and be trusted, and she is nowhere close to that.  I now don't trust anything she does without review.  Yet, I know she is capable of doing good work and she is smart.  I can't figure it out.  Many other partners aren't as understanding as I am, so I think I am going to have a brief talk with her.  I mean, spend an extra hour and review the document before you start sending it to everyone, right?  But then again, I'm a crazy perfectionist.       

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