This article appears on Law360 on April 19, 2016 and is reprinted with permission.
Ruffin B. Cordell is a principal in Fish & Richardson PC’s Washington, D.C. office, where he serves as lead counsel in patent litigation matters in district courts throughout the country and before the U.S. International Trade Commission (Section 337 proceedings). Over his career, he has led high-stakes, high-risk patent and trade secret cases involving a wide variety of complex products and services. He has handled well over 50 cases at the ITC. Many of Cordell’s cases involve multijurisdictional disputes at both the ITC and in the federal district courts. With an electrical engineering degree, and a stint working as a USPTO patent examiner before joining Fish, Cordell has an understanding of the technology behind his clients’ products and services. In 2012, Cordell was elected as a fellow of the American College of Trial Lawyers. He regularly receives top rankings by Chambers USA (band 1), Best Lawyers, Managing Intellectual Property, IAM and Benchmark Litigation among others.
Q: What’s the most interesting trial you’ve worked on and why?
A: I had a patent trial in the early 2000s in front of Judge Farnan in Delaware, who has now retired but was an outstanding trial judge. His view was that juries sometimes confused infringement evidence for invalidity, and vice versa. He trifurcated our case, so the first trial was on infringement, the second trial was on invalidity and the third trial was on damages. Doing a series of trials in a short period was like a litigation experiment, where the parties could focus on each claim or defense to a degree not usually possible. We never got to damages because we won an injunction, but seeing the issues tried first from an infringement perspective, and then from an invalidity perspective offered a unique view into how patent cases are decided.
Q: What’s the most unexpected or amusing thing you’ve experienced while working on a trial?
A: I’ve had witnesses faint in two trials, and that is always unexpected and disruptive. We prepare for all sorts of contingencies, but it is difficult to plan for someone who passes out. Fortunately, both witnesses recovered quickly and neither had any lasting effects from the experience.
On the amusing side, I put a client’s chief technology officer on the stand a few years ago, and his only suit was the one he had last worn to his wedding a decade earlier. As he was about to be called to the stand, his pants split right down the back. Since we did not have time to get him a new suit, he simply pulled his coat down over the tear and took the stand. I was both terrified that people would see the split, and also had to suppress a smile every time I looked at him knowing his “secret.”
Q: What does your trial prep routine consist of?
A: Like most trial lawyers, I believe preparation is key so I try to internalize as much of the record as possible. Knowing the issues and evidence allows you to pick your battles and chart a path to victory. All trials are complicated and imperfect, but patent trials are perhaps the hardest. We drag in eight or more people to sit on juries who usually have little legal or technical training, and we ask them to resolve some of the most complex disputes imaginable involving esoteric technology and law. Knowing the issues and evidence allows you to boil down the issues and lend clarity to the decisions the jury has to make, and they will reward you for that effort.
Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?
A: Get some sleep. No battle plan survives first contact with the enemy, and you need to have your full wits available when the trial begins. Listen to the evidence as it comes in and try your best to put yourself into the chairs of the jurors. In patent cases in particular, the issues and evidence are complex and filled with jargon. Translate your case into plain language and focus on what you would want to know if you were a juror. Finally, stay true to your own personality and style when it comes to questioning witnesses and arguing your case before the jury. Juries have an extraordinary ability to expose pretense, and changing your stripes when you enter trial is a recipe for disaster.
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
A: I tried a case a few months ago with a very capable lawyer, Monica Bhattacharyya from the U.S. ITC’s Office of Unfair Import Investigations. Despite being essentially a solo practitioner in a massive matter where private parties fielded trial teams numbering in the dozens, Monica was a true force in the courtroom and her examinations quickly became the focus of each witnesses’ testimony.