Intellectual Property

3 Questions For A Delaware Litigator And Court Commentator (Part II)

This court commentator is a practicing attorneys, not a reporter. He has a better idea of when a decision is significant and when it’s not.

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intellectual-property-law-300×169This week, I continue my written interview with Andrew Russell, a founder of IP/DE, a “blog about intellectual property litigation and the District of Delaware.” Last week, Andrew shared his thoughts about how blogging about IP developments in Delaware has helped his practice. This week, I will get into a little more detail with Andrew as to some of the challenges practicing legal bloggers face, as well as why he feels that blogs like IP/DE continue to enjoy pride of place in the IP media ecosystem.

Now to the remainder of my interview with Andrew. As usual, I have added some brief commentary to the answers below but have otherwise presented his answers to my questions as he provided them.

Gaston Kroub: Do you ever feel like you are constrained in sharing your true opinion about developments your blog covers because of your responsibilities as a practicing lawyer?

Andrew Russell: Absolutely. A practicing attorney who writes a blog is caged in on all sides. Obviously, attorneys have ethical duties of confidentiality and privilege to clients — so writing about cases you are involved in is risky. We also have relationships to maintain with other attorneys in the community — so writing about cases you are not involved in is also risky. And, no matter what you write about, no attorney wants to say anything that is going to upset the court.

Beyond those concerns, you’re constrained by your own expertise or lack thereof. I try to make sure everything I post is correct. That limits what I can post about. There may be a super-interesting bankruptcy appeal, but if it’s outside of my practice area and I don’t have enough confidence that what I’m going to say is absolutely right, then it’s probably better to stay silent.

The Venn diagram of things a practicing attorney can talk about on a legal blog without causing issues winds up being very small.

Likewise, it’s often tempting to blog about a crazy issue when it comes up in a case I’m involved in. But you can’t do that. I know other attorneys around town read the blog, and the absolute last thing I want to do is tip the other side off or help improve their position by writing about it on the blog. I keep a running list of things I’d love to blog about but can’t, at least until the issues are no longer relevant to pending cases.

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The good news is that, so far, there seems to be plenty to write about within those boundaries, and we’ve been able to keep up with our goal of having at least one post per day.

GK: With such an ambitious posting schedule, I can see how it can sometimes be a challenge for ID/DE’s contributors, Andrew included, to find acceptable subject matter to address. At the same time, we are fortunate to practice in such a rich and varied area of the law, where even a “simple” patent case, for example, can present a host of interesting procedural and technical issues to consider. And because the IP litigation tapestry is such a rich one, even a focus on happenings in one jurisdiction still presents plenty of opportunity to introduce to the audience valuable material that can enhance their practices going forward.

GK: Why do you think practice-specific legal blogs like yours remain relevant reading in this age of a more robust IP media ecosystem?

AR: We wrote about this in our first post a couple of years ago. I try to write the kind of blog that I would want to actually read. There are plenty of great, IP-focused legal media outlets out there these days. But they don’t offer the in-the-dirt practical perspective that a niche legal blog can.

We’re practicing attorneys, not reporters. We have a better idea of when a decision is significant and when it’s not. We know the background of the legal issues, the judges’ views on them, and the history of those issues in this court. We’re also focused a lot more on procedural issues that impact litigators from day to day — things like word and page limits, deposition practice, and summary judgment rules. Many of our most popular posts have not been IP-related at all, such as procedures for objecting to 30(b)(6) notices or for redacting sealed material.

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These kinds of things aren’t flashy, but they can have a huge impact on how cases proceed. And without some sort of blog or website focused on them, all of that knowledge can be very difficult to dig up. Yes, you can Google some of these things. But the best legal journalism right now tends to be locked behind pay walls. That’s fine for many firms, but it walls out attorneys whose jobs aren’t focused on IP litigation, or who are not interested in paying Law360 prices (let alone Bloomberg prices).

I also hope that we give a bit more depth than other outlets. The idea is that, reading the blog, you’re hearing some of the same kinds of straightforward comments that an attorney might make to another attorney, in plain language. That’s not something you see as often at the more professional legal media outlets. I’d love to read a version of our blog that is focused on practice in the Western District of Texas or the Northern District of California, and I’m sure there are many people out there that could write it up as well as we do or better.

GK: I would be the first to endorse the benefits of having a practicing attorney comment on ongoing litigation developments. And I commend the material I have seen on the IP/DE blog for the contrast it presents with how issues are sometimes presented in the IP media, as Andrew notes. In short, the blog has a voice, one that is informed by the professional skill and curiosity of its authors. That skill, compared with Andrew’s awareness of the needs of IP/DE’s audience, should continue to serve in good stead its readership — who not only benefit from the free content, but also the blog’s focus on the often-neglected procedural issues that be of outsized benefit to a practicing IP attorney’s knowledge base.

My thanks to Andrew for the insights and cooperation, especially for his willingness to discuss IP/DE during one of its busiest ever weeks, with all of the attention on the Chief Judge Connolly/IP Edge hearings. I wish Andrew the best of luck in all of his ongoing endeavors and hope that both his practice and IP/DE continue to flourish.

I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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