Trial Pros: Wolf Greenfield's Mike Rader
(as published in IP Law360)
Michael Rader is co-chairman of the litigation practice group at Wolf Greenfield & Sacks PC. Rader has been with Wolf Greenfield for his entire career, since the summer of 1997. He represents the firm’s clients as lead counsel in patent, trademark and copyright cases in federal district courts across the country and before the U.S. International Trade Commission.
Rader litigates against some of the largest law firms in the country. He represents clients such as Sony Corp., EMC Corp. and Smith & Nephew PLC.
Rader also serves on Wolf Greenfield’s public service committee, which oversees pro bono matters, and he is chairman of the firm’s charitable contributions committee, which oversees the firm’s charitable giving.
Q: What’s the most interesting trial you've worked on and why?
Several years ago I tried a case at the International Trade Commission on behalf of a respondent called MStar Semiconductor. Our trial team consisted of four attorneys, while the complainant, a company called Thomson Licensing, was represented by more than a dozen lawyers from a large general practice firm. The courtroom was so packed that the administrative law judge sequestered the witnesses — not for evidentiary reasons, but, as he put it, as a form of “crowd control.”
The technology, scaler chips for controlling the picture in digital televisions, was interesting, but the most unique aspect of the trial was procedural. On the first day of trial, the ALJ ruled that any trial exhibits that had not been fully translated into English would be excluded. The ALJ’s ground rules required translation. Fortunately, we had taken a conservative view of the ground rules, so the brunt of the ruling fell on the other side. The complainant argued that if a multipage document contained a single sentence in a foreign language, the document should not be excluded. The ALJ stood fast, observing that, for all he or the lawyers knew, that single sentence might contradict the purpose for which the document was being offered. The complainant’s legal team spent innumerable hours throughout the rest of the trial scrambling to reformulate the case based on a subset of the original trial exhibits. The ALJ’s ruling on the translation issue confirmed the importance of scrutinizing and complying with courts’ and judges’ rules and practices.
On the merits, we had a focused case based primarily on the testimony of our expert and cross-examination of the complainant’s expert. All of the direct testimony was presented in the form of written witness statements, so the hearing was “all cross all the time.” I had gotten hold of a 1988 textbook, authored by the complainant’s expert, which called into question his trial testimony. I safeguarded that book like gold and insisted that it be transported inside a large manila envelope so that the other side would not see it until the moment I was ready to use it for impeachment.
Q: What’s the most unexpected or amusing thing you've experienced while working on a trial?
Hands-down, my most unexpected trial experience was the time that opposing counsel, in the middle of examining a witness, announced that she was pregnant.
The case involved medical devices and surgical techniques for treating varicose veins. I represented the defendant. The plaintiff asserted a date of invention earlier than the filing date of the patent. The claimed dated of invention was the day that the witness allegedly performed an experimental procedure on the vein of a live goat.
At his deposition, the witness could not remember the procedure. He could not remember the goat or the goat’s vein. He could not remember much about the day when the patented surgical technique was supposedly invented.
Despite his lack of recollection during his deposition, when he took the stand several months later at trial, the witness vividly recalled, and described for the jury, the events of that now-important day, right down to the way the goat’s vein responded to the treatment. He even spun a tale of self-sacrifice, describing how he recalled shielding a pregnant colleague from x-rays that were used during the procedure by interposing his body between her and the x-ray machine.
Under cross-examination, the witness of course was impeached by his testimony, at deposition, that he could not remember the events of that day. To rehabilitate the witness and explain his suddenly impeccable memory, opposing counsel conducted redirect. The witness testified during redirect that his discussions with counsel during his preparation for trial brought back the 13-year-old memories of shielding his pregnant colleague from harmful x-rays — which in turn triggered memories of the goat, the procedure and the effect of the procedure on the goat’s vein. After the witness finished reminiscing about heroically protecting his colleague, opposing counsel announced in open court that she, too, was expecting.
Q: What does your trial prep routine consist of?
My trial prep begins when the case is filed. For example, to ensure that we are focused on the themes that will ultimately animate the trial, I work on my opening statement early in the case, and use it as a guide to the discovery process. Similarly, because I believe that trials are won and lost on cross-examination, I begin working on cross early. I develop an outline of how I plan to cross a witness before taking the witness’s deposition.
I ask the team to arrive at the trial site two full weeks in advance for “final” preparations. At the office, there are so many distractions, and we need enough time to polish the opening, our directs, crosses and demonstratives. By arriving early, we avoid (or at least minimize) the all-nighters and can be fresh and eager when it is time to select the jury.
Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?
Be yourself. Do not try to be the lawyer you think the jury expects, and do not try to mimic another attorney’s style, no matter how successful he or she is in court. You will be at your best when you are comfortable and natural. People — and juries are just people — relate to other people who are genuine. People don’t like artificiality.
Relatedly, while you should definitely be yourself, you should also be open to learning from many other people as you develop your own personal style. In addition to your mentors within your own firm, don’t forget opposing counsel! You are going to face off against many highly skilled opposing counsel in your career and they have much to teach you. The best lawyers are the best learners, those who are open to learning from everyone.
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
I tried a patent infringement case against Bill Bright of McCarter & English — who has since been elevated to the bench in Connecticut — early in my career. Bill demonstrated all of the skills and values of a great trial lawyer. He was extremely creative in the way that he framed the issues in that case for the jury. He was an aggressive advocate — I will never forget one thundering cross in which Bill displayed a perfectly-calibrated level of righteous indignation after our witness scored points with some late-breaking evidence. Bill also took seriously the obligation to work cooperatively and in a civil fashion with opposing counsel. At a time in my career when I was experiencing other opposing counsel who behaved differently, Bill’s attitude influenced me and helped shape my own approach.