By Andrew Goldberg
When Judge T. John Ward--the man most closely associated with turning the Eastern District of Texas into a patent litigation hotbed--retires in October, his likely successor shouldn’t have much trouble finding his new workplace.
After all, James Rodney Gilstrap, the 54-year-old Marshall, Texas, lawyer nominated last month by President Obama to succeed Ward, works right across the street from the federal courthouse where Ward presides, at the offices of Smith & Gilstrap, the law firm he co-founded in 1984.
When it comes to substantive judicial policies, court observers don’t expect Gilstrap, a former Harrison County Judge, to stray too far from the path that Ward blazed.
“There will be style differences because every judge has a little bit different style on the bench, but I don’t anticipate the substance will change because Judge Gilstrap is familiar with how the local court is run,” says Michael Smith, a name partner at Marshall law firm Siebman, Reynolds, Phillips & Smith whose dealings with Gilstrap include the two men’s participation in a 16-year effort aimed at restoring the historic statehouse building that sits on Marshall’s town square. “The Eastern District judges tend to do a lot of things in similar ways, and I expect that he’ll follow in that tradition.”
Gilstrap, who was nominated by the Democratic president and has the support of the state’s two GOP senators, was one of three names on the shortlist formally recommended by the Texas Democratic delegation a year ago, according to Tex Parte, a sibling blog published by Texas Lawyer. The other two were Magistrate Judge Chad Everingham, who regularly presides over patent cases in the Eastern District of Texas, and Longview, Texas lawyer Eric Albritton, who served as co-counsel in patent infringement cases brought against Boston Scientific and Johnson & Johnson over cardiac stents that generated big jury verdicts for the plaintiff.
If confirmed, Gilstrap will likely inherit Ward’s packed patent docket, where the time to trial peaked last fall at just over three years. Much like Ward, who only tried one patent case before he came on the bench (He represented Hyundai Electronics in a $25 million patent infringement suit brought by Texas Instruments), Gilstrap also has only limited patent litigation experience, despite having served as local counsel in a number of patent cases. For example, he represents Bluestone Innovations Texas in an infringement suit brought against various foreign companies over LED technology, and defendant Capital One Financial Corp. in a patent suit brought by LML Patent Corp. against a number of large banks over patents on payment services. His representation, however, doesn’t appear to include the kind of big tech companies often dragged into patent suits in East Texas.
While it’s too soon to tell how Gilstrap’s ascension to the bench will affect patent infringement cases in the jurisdiction, Smith doesn’t believe that Gilstrap will be at a disadvantage. “He’s seen some patent cases. I don’t believe he’s actually tried one, but he has seen the cases go through the system for a number of years, so he’s familiar with patent litigation,” says Smith, who was planning to serve with Gilstrap as local counsel for co-defendants in a patent case before Smith’s client settled out.
Gilstrap, who declined an interview request, moved to Marshall after graduating from Baylor Law School in 1981, three years after receiving his B.A. magna cum laude from Baylor University. Before co-founding Smith & Gilstrap, where in addition to the occasional patent case his wide-ranging practice covered everything from oil and gas to real estate and probate law, Gilstrap worked as an associate at the law firm of Abney, Baldwin & Searcy from 1981 to 1984.
Smith first got to know Gilstrap personally during the 12 years that Gilstrap served as Harrison County Judge from 1989 through 2002. “My wife is the county treasurer, so he and my wife worked together for a long time in county government. Every four years, they ran together on the same ticket,” says Smith. (In Texas, the County Judge is the chief administrative position in county government, not a judicial office.) “I was going through some scrapbooks, and I found his picture at my wedding 15 years ago,” says Smith. “But it’s old Marshall family, so I’ve known him forever.”
Like Smith, Carl Roth of the Roth Law Firm is confident that things in Marshall won’t change too much with Gilstrap on the bench.
“He’s very professional and even handed,” Roth says. “He spearheaded several important projects for the county [as county judge], not the least of which was the restoration of the historic county courthouse and airport improvements, and he managed to do it without political controversy.”
Jeffrey Thompson, a Republican County Commissioner who worked with Gilstrap, a Democrat, on the Commissioner’s Court from 1995 to 1998, agrees that Gilstrap was adept at working across party lines on budget matters as County Judge. “We had no problems at all between party affiliations. Anytime you’re dealing with votes, they can be construed as just Republican or Democrat. But during that time, I don’t think there was any straight Republican push or Democrat push,” he says.
Thompson looked to Gilstrap as a mentor. “As a freshman commissioner coming on the court kind of green, I found his open door policy very helpful,” says Thompson, who is thrilled that Ward’s successor will come from the extended Marshall family. “The candidate could come from anywhere across the United States,” he says. “To fit the need locally right here from Marshall, it was very delightful.”
While judicial nominees are always subject to the vicissitudes of the Senate, court observers don’t see anything controversial about Gilstrap’s nomination.
“The two senators from Texas have wholeheartedly endorsed his candidacy. The White House has nominated him. He was recommended by the Texas Democratic delegation. He has literally dotted ever i and crossed every t that you can,” says Smith. “I’m just hopeful that there’s no unforeseen obstacle because of something unrelated to his nomination because I think his nomination is about as clean as a nomination can be.”
Gilstrap’s work ethic and experience in public service will serve him well on the federal bench, according to Thompson. “He’s not going to be blind-sided about issues that could come up during his tenure. He’s not going to shoot from the hip. He’ll do his homework. He’ll do a good day’s work. He’ll show up, he’ll suit up, and he’ll perform his duty. No questions asked,” says Thompson.
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