Sunday, March 6, 2011

Mission Impossible, updated with more impossibility

I enjoy most of the work I do-- even the mundane things that junior associates frequently get just because they're the lowest cost billers, I manage to enjoy by virtue of my love for chronological and alphabetical order (and rainbow order, but I rarely get to use that outside of my closet). But sometimes, I will develop a strong dislike for a project- usually because it won't go away, no matter how many times I revise and edit and look for new case law and revise again. And even more rarely I will occasionally hate a project.

I hate this project.

It's for an IP case I'm not really staffed on, I just get pulled in whenever there's an impossible research assignment and they want someone to do a survey of all of patent law just to make sure they didn't miss anything. I'm not an IP lawyer and have no interest in being one, but I am becoming a westlaw expert on impossible IP research assignments. I suppose it's a compliment that they keep roping me in a few weeks after I've finally believed I'm free, but a much better reward for my finding of the last impossible citation would be for everyone on the case to forget my email address. You see because I'm not officially "on" the case (and I'm doing all I can to avoid being on it, the trial schedule is going to be crazy and I like to sleep and see my children), I don't know anything about the facts, the procedural posture, the evidence, or our strategy. I know a few obscure arguments and I've drafted a motion to compel based on a single deposition on a discreet side issue, but I'm not sure what else is going on. And yet, I now find myself drafting a response to a motion in limine for the trial that is in a month.

For the non-lawyers out there, a motion in limine is a motion filed by a party to preclude the other party from introducing certain evidence at trial. It is filed before trial because the moving party feels it would be unfairly prejudicial for the jury to hear it (so they don't want to follow the normal procedure of objecting after it's introduced in front of the jury). Responding to one of these often requires the person writing the brief to have some idea of the arguments in the case and an understanding as to why we might want to use the evidence the other side is trying to preclude. It would be good if I knew those things.

I was asked to draft this response because it involves the legal issue I spent a lot of time researching for the motion to compel I wrote earlier, so I'm assuming they just want law and understand that I can't add facts. Accordingly, the following are phrases I've included in this first draft:

... (case citation). Clearly, (case) applies because [insert facts about why the case applies; if there aren't any, remove this paragraph.]

... [insert facts to support prong 1 here; we have some right? we need them]...

... [is there an argument the patent is invalid? if so, we can't use this paragraph or the previous two cases I cited]

... can make a showing of objective recklessness. [Attach exhibits? describe one or two here.]

It's kind of like a Choose Your Own Adventure Book. If we have facts for x, insert paragraph y; if not, use alternate paragraph z. Good times.

Thank goodness I have leftover Caramelita Bars from the bbq lunch I hosted today for a friend/co-worker and her family, and lots of smiley memories of what my house was like with four kids under the age of 4 (that sounds crazy, but it was so fun and I got to cook lots of recipes I never make anymore). It was a great morning. Thanks to this impossible little project, my afternoon has been somewhat less pleasant, but I did at least get to work from home with Clairebear crawling laps around my desk, and I was productive enough that I'll be in bed by midnight. I've just got to draft a few more choose your own legal argument plot points. Next is alternate argument 2: "if we don't have evidence for any of the facts I've suggested, use this paragraph and delete all the others."

Bleary Monday Morning update: Went to bed at 11 p.m., planning to get up at 6 a.m. to be at work by 6:45 to finish assignment before all-day mandatory training began at 8:45. Finally beat back insomnia to fall asleep at 2 a.m. Alarm went off at 6, dragged myself out of bed and got dressed, Landon came down covered in throw-up at 6:30. Bathed him, cuddled him, sent him off to JP's master's swim class with toast, a new book originally intended for the Easter basket, and a personal DVD player with Nemo. Finally got to work at 7:45 with no chance of handing off project to people who actually know things about the case before training begins. Now about to lose my Monday to learning about expert opinions while under caffeinated and seriously over tired.

Did I mention I'm leaving for vacation for 5 days on Sunday and both my cases have suddenly exploded and I have more work than I can possibly get done before I leave even if I simply stop sleeping?

And then I got an email from a partner in a case I worked on nearly a year ago asking for some random, follow-up research by Wednesday. I wrote back what basically amounts to a "No. Full stop." and almost cried. I don't do well on 4 hours of sleep. When I get to the ski slopes on Sunday I'm going to throw my blackberry off the ski lift and then probably fall asleep and fall off the chair myself.


  1. Thanks for the post. It was a nice distraction as I do Sunday-night doc review as my baby sleep and my sick husband dozes on the couch :)

  2. ugh -- i've had to write one of those, though thankfully not on an IP topic. Choose your own adventure captures the process well.

  3. I just got pulled in to write an appellate brief on a case I'm not staffed on. My draft looks a lot like yours. It's...not awesome. But your Monday morning update is particularly painful. You'll have earned your vacation for sure.

  4. I don't mean to rub it in or anything. But I am SO GLAD I'm on maternity leave. (Even though my poor body has yet to recover.)