The Boss is in the Courthouse:
Federal Judge Alan Albright Talks Bruce Springsteen, Rules on Patent Law & More
This may be the first time that Bruce Springsteen and patent law are mentioned in the same sentence. But Alan Albright, a federal judge for the Western District of Texas, can make the connection.
Albright has otherwise been busy this past year, holding trials throughout the pandemic and juggling what is probably one of the busiest patent law caseloads in the country: This after being on them not even two years.
As if that is not enough, Albright has let it be known that there will be no motions to compel in his patent cases: the attorneys can call him to settle disputes, questions, and scheduling conflicts. Albright, of course, has a support team that includes technical adviser Josh Yi, who is one of Albright’s many impressive assistants: Yi has a law degree and a Ph.D. in electrical engineering.
Magna: I am going to assume most people don’t grow up wanting to become a federal judge. What did you want to be when you were in high school?
Albright: More than anything, I wanted to be Bruce Springsteen. That is a serious answer.
And I do play guitar and sing and perform. But in the end, being Bruce Springsteen, was not to be.
Why does Bruce Springsteen appeal to you so much?
His depth and the vision make him like the Michelangelo of music: he can’t paint today because he’s sculpting. By that I mean not only is there the incredible power of Springsteen’s voice, which is its own majestic instrument, but the diversity of his music.
I am thinking of songs like “None But The Brave,” “Jungleland,” “Meeting Across the River,” “If I Should Fall Behind.” It makes you realize there are probably 100 Springsteen songs where people say, “That is my favorite.”
What’s your favorite Springsteen song?
Well, the most magical live Springsteen moment was when I saw him at the Cotton Bowl in Dallas. It was the “Born in the U.S.A.” tour. Three-hour long concert.
Then came the encore. He sang “I Can’t Help Falling in Love With You.” Elvis. And he kills it.
I had just gotten out of law school. So, I’m thinking as a trial lawyer: Imagine having this many people being riveted to you. In that same vein, the jury is an audience for a trial lawyer. And as an attorney, I always thought I had to give my best performance for the jury.
So, there’s another first: Bruce Springsteen launched your career as a trial lawyer?
Actually, I think the spark to become a trial lawyer was – and I am 99% sure of this – the show “Storefront Lawyers.”
While watching that show I said to myself, “That is what I want to do.” Although my parents did not go to college, and it was not a family expectation, I was lucky enough to do well in college then go on to University of Texas School of Law.
But maybe there was at least a subliminal Springsteen influence all along: that I wanted to be a performer and be in front of people.
I knew I wasn’t going to be Springsteen, but I always had the desire to get in front of people and do the hardest cross or the most difficult opening argument and take the star turn.
I started practicing law in the 1980s. I became a
U.S. magistrate judge in 1992 but left the bench in 1999 because I missed being a trial lawyer doing patent litigation.
The biggest honor of my career was becoming a member of the American College of Trial Lawyers.
Some would argue that becoming a federal judge is also a career high point.
Well, I would say getting to be a federal judge is like being struck by lightning and surviving. You have about the same odds.
And I did apply to be a district judge in 2003 in Austin and was not selected. And I don’t know that I thought about it again.
Then in the summer of 2016, I’m not sure if it was divine intervention but I somehow saw the federal judge in Waco had stepped down. I thought, “Boy, that would be a great place for a judge who had a strong background and experience in patent litigation to be an asset in the judicial system.”
The situation was that in 2011 Congress had done a patent pilot program in select districts to provide them with extra funding to improve the jurisprudence because patent cases take more time.
But by 2016, for example, the Delaware patent court was phenomenally overburdened. It was the same in California and the Eastern District of Texas. By and large you had a large number of patent cases and a small number of patent venues.
If I became a federal judge, I saw myself as a potential safety valve; as one more jurisdiction where, if people wanted to file patent cases in front of judges well versed in patent law like Delaware and California, I could provide another off-ramp. That would be a phenomenal way to end my career.
What is the appeal of patent law? I am assuming the episodes of “Storefront Lawyers” didn’t cover much of it.
In the 1990s as a magistrate, I handled some patent trials. I saw that area of the law as a real challenge but enjoy the issues. By 2001 I think I was doing patent trials. I like the triumvirate of working with patent law, having to learn new technology after new technology, and being a good trial lawyer. The lawyers in that area of the law are exceptional.
Were you the first federal judge to hold a patent trial during COVID?
Not necessarily. There were a couple others starting COVID patent trials at or around the same time.
How did those trials differ from a trial in “normal” times?
In 99% of the way, it was not different at all. For example, I’ve heard attorneys say that with masks on, they can’t tell what a juror is thinking. Well, I can’t tell what a juror is thinking with or without a mask on. If I could do that, I’d go to Vegas.
I was also unbelievably lucky in the sense that people in different parts of the country feel differently about COVID. In Waco, most were not concerned about COVID.
Still, in the courtroom, we wore masks. There were no bench conferences. We did everything we could to make people feel safe. We were smart about it.
We thought, what situation is likely to get you in trouble with COVID? Voir dire, when you have a group of people gathered in a room and talking. So, when we would normally have 30 present for voir dire, we had half that number and questioned them individually.
For the jury, we brought lunch in, so they did not have to go outside. We used a whole other courtroom for the jury instead of the jury room.
My clerk checked with the jury to make sure they felt happy and safe. We had to be pro-active.
Thanks to the chief judge, I had a remodel of the courtroom that took six weeks so that we could broadcast by Zoom. So, if you are with the ACME Corp and you don’t want to be in the courtroom, you can sit in your hotel room and watch the trial. My courtroom is probably among the most technologically advanced in the country.
In one trial, we reduced the number of people affiliated with the case allowed in the courtroom to make room for the public. But it was like having an empty church.
Do you think the pandemic changed the types of people that ended up sitting on the jury?
It did not. For example, we didn’t want people over a certain age self-selecting out and I kept an eye out for that, but I had absolutely no worries that any group was self-disqualifying from the pool.
Do you foresee any lasting changes to the way court business is conducted post-pandemic?
Probably the number one thing: Zoom is here forever for hearings. And I think that is a good thing because there are so many upsides to Zoom.
For example, I had a hearing this week where one party was Chinese, and another was South Korean. They will have to come here for trial, but they did not have to come for pretrial and can still evaluate each other.
Or, you might have nine attorneys present for a hearing and with Zoom none of them have to travel.
But my favorite thing about Zoom? It will promote a generation of attorneys who have appeared in court, something we are concerned about in the trial lawyers college. With Zoom, the less experienced attorneys can have a turn in court because you don’t have to worry about flying your big gun out from New York to Waco and having a bigger expense because there will be a court appearance.
Or, if there are half a dozen issues being argued, it is easier to rotate in a young associate on two or three of the less important issues – and again, give them the opportunity to appear.
The younger attorneys are usually the most prepared anyway. When I was a partner, an associate attorney would often help me prep.
I always compliment younger attorneys if they speak in my court.
How did you first hear about Magna?
Through Magna Business Development Manager Meredith Cherry because she comes to trial and observes.
On that note, thank you so much for speaking to Magna. I feel that you don’t see federal judges quoted so much in the media.
I like to think that I don’t make headlines. I just do my job and the media chooses to write about me.
I would never talk about cases that are pending – that is inappropriate. But I do feel it is important for judges to be as transparent and as accessible as possible. I have never turned down an interview since being on the bench.
You also are not gun-shy about speaking directly with attorneys.
Actually, in 22 minutes I have a call from people in a deposition who aren’t getting along. My rule is that attorneys don’t file motions to compel in my court on patent cases. I’m not a judge who thinks all good lawyers can work it out and “why are they bothering me?” My philosophy is call me or my clerk and let’s work it out.
What is the most frivolous call you have ever had from attorneys asking you to settle an issue?
I can’t say I recall. There have only been two or three calls where I hung up and have not been impressed with the call and just said to myself, “Jeez.”
Ninety percent of the time I get a call from attorneys, I understand why they can’t work it out and why it helps to have a judge decide. Usually, I can help because they need to do additional things, but are constrained by scheduling order, which the attorneys can’t change.
A judge will help with scheduling and has the power to adjust the deadlines and help them out. And I support lawyers working it out at lower expense with a phone call.
I feel that I have the power to adjust almost anything. I have the power to fix things and make myself available to help.
I can’t prove it, but I always felt that by making myself available by phone, it actually makes lawyers more likely to work things out. For example, if two attorneys have a dispute, it pushes them to try and do everything they can to resolve it before calling me. Because you want to have been exhaustive before you pick up the phone and call a judge.
Does your family ever get tired of you always taking calls from attorneys?
They are OK with it. In general, I am the one who sometimes has to draw the line. For example, when I had a long week once the law clerk called me on a Friday morning and said I was free at 4 PM that day and asked if I could squeeze in one more hearing. And I said, “I am going to stay free.” I enjoy great lawyers and I enjoy hearings. But I’m normal. I get tired. I might want to quit at four rather than five.
You say that so far this year, 20% of patent cases filed in the United States are in the Western District for Texas. You have 90 to 95% of those. Why do you think that is?
You’d have to ask the lawyers. Although it is misleading to say that as a judge, I only do patent law.
In fact, I’ve done more non-patent trials than patent trials on the bench and handle a variety of civil and criminal cases.
I understand you have various advisers who are, shall we say, extremely well educated such as Ph.D. and attorney Josh Yi.
When I have a case with semiconductors, well, I have a guy who has a Ph.D.
When he came to me, it was like manna from heaven. I had been on the bench six or seven months and was picking law clerks. University of Texas School of Law said we have the perfect clerk for you. Yi became my clerk for about a year before becoming a technical advisor.
BTW, I have another clerk with two masters’ in electrical engineering. He was going to get a Ph.D. but then realized he had to get a job.
Is there any secret to being a good patent attorney?
I think jurors are bright and hardworking. But if you are talking about DNA or a semiconductor, the key to being a great patent attorney is being able to explain things to a jury of non-technical people in a way they can understand.
That is no mystery. It’s actually patent litigation 101.
Looking into the future, any goals you have?
No, I love what I am doing. I am going to teach patent litigation at University of Texas School of Law in the fall as an adjunct. I figure I might have some unique insights.