There are striking similarities between the roles of a film director and the chief of operations of a complex intellectual property case. The same principles apply to any complex case, including large commercial or products liability disputes.
A film director controls all aspects of making a film, including its artistic, dramatic or comedic aspects, and guides the technical crew and actors to achieve the director’s vision. The COO of the complex IP case directs all aspects of the making and, ultimately, the presentation of the case and guides the legal team to achieve the “mission” of the case, which is obtaining the ultimate relief sought by the client. However, there are no retakes in a complex case, because the COO/director is not afforded the chance to reshoot a scene. If an actor (one of the lawyers or a witnesses) botches a cue or his lines, the COO is stuck with that bad performance.
Having to present and explain the IP in dispute complicates effective storytelling. Often, the IP involves complicated technology and wordy, unfamiliar and esoteric patent claims, laws and procedures. Presenting the IP is the equivalent of introducing sophisticated special effects into the story. The jury (or perhaps a judge unskilled on patent law or the technology) will naturally gravitate to the humanness of the story and not the IP itself.
The challenge for the COO/director is to present a compelling story with the special effects of the IP at issue without compromising the humanity of the story. The success of the blockbuster films of director James Cameron (“Terminator,” “Aliens,” “Titanic”) are generally attributed to his ability to marry awesome special effects with the humanity of the story, e.g., Arnold Schwarzenegger’s cyborg character learning to say: “Hasta la vista, baby.”
Marrying the humanity of the story with the special effects requires the development of a strong plot line. The COO/director’s job is to create, shape and supervise the creation and presentation of the plot line.
If the COO/director is directing a complex case for the plaintiff, then the story is a tragedy and must show and prove how things have gone from bad to worse, e.g., the protagonist finds itself in the awful position of having to compete against its own technology. If the COO/director is directing a complex case for the defendant, then it’s a comedy or a farce. A comedy ends with the protagonist better off or at least no worse than at the start of the story — meaning there’s no infringement, for example. Or, the COO/director makes it a farce by showing that there really was never a “gee whiz” to these patents because someone else had beat the inventors to the idea, as proven by invalidating prior art.
Unlike a film, where “The End” appears and the credits begin to roll, the conclusion of the complex IP case ends with the request for the relief sought, i.e., the ultimate goal of the mission. The audience is asked to do something and, specifically, to make a decision. Audience members cannot simply get out of their seats and drive home. The ultimate job of the COO/director is to ensure that presentation of the story causes the audience to reach the desired decision.
Every production requires a directing style and actors to match it. There are a variety of directing styles. Some directors employ loose directing styles, outlining the general plot line and letting the actors improvise the dialog. Directors like Christopher Guest (“Best in Show”) and the late Robert Altman (“M*A*S*H,” “Nashville”) employed this style. On the opposite side of the spectrum are directors who control every aspect of the film and demand that the actors follow specific instructions. Directors like Steven Spielberg (“Jaws,” “Schindler’s List,” “Saving Private Ryan”) use this type of controlling style.
The COO/director who is loose in approach and encourages freedom and improvisation will need highly skilled, self-starting and probably more senior litigators who don’t need or want a lot of supervision. In contrast, someone Spielberg-like in style, who needs to manage every detail of the case, should staff it with lawyers who thrive on that type of directing style.
Another suggestion is to develop and use effective work-product and communication protocols. The complex case will be on a fast production schedule and likely on a fixed budget.
Work-product protocols include every key piece of work product that the team will generate, e.g., witness interview summaries, deposition summaries, claim charts, client memos, cross-examination outlines, etc. Nothing regarding the format for key work product, which captures the essence of the record evidence to be presented in the story, should be left to the discretion or whimsy of any of the actors on the legal team. Additionally, all of the key work product must be posted at a central, shared and easily accessible location.
The COO/director also must control what information he or she receives. The COO/director simply cannot be all-knowing about every fact of the complex case. Great reliance must be placed on the team members assigned to the various projects or aspects of the case (e.g., the infringement team) to know the details. The job of the COO/director is to know enough of the details to accomplish the mission, tell the story as set forth in the plot line and guide the entire cast and crew and, ultimately, accomplish the mission.
With time at a premium and constraints on the budget, the COO/director must conduct effective and efficient production meetings, like short team huddles. For these huddles, no preset agenda is necessary, and often the action item list will drive the discussion. The agenda also can be defined by asking what’s hot and needs to be discussed or fixed. Then the topics identified should be prioritized and addressed.
The COO/director must impose accountability. This means setting realistic deadlines for the assignments, making sure that the team knows that all assignments are closely tracked to ensure their completion, and then actually tracking those assignments through completion.
The importance of holding rehearsals cannot be understated. In advance of significant presentations, e.g., major client presentations or, obviously, court-related presentations (e.g., a Markman hearing, summary determination hearing, trial, etc.), there should be a full rehearsal. Everyone in the cast who has any connection to the presentation should meet in person (ideally) and rehearse the presentation from start to finish. Rehearsals will expose the gaps and goofs in the preparation and the presentation and will allow correction before the actual performance, where, again, there are no retakes.
If a COO/director expects the actors to show up on time, completely prepared and ready to give their best performance both in the rehearsals (at team meetings) and performances (in the courtroom), the COO/director should model the expected behavior. If there are team members who are faltering or repeatedly delivering bad performances, the COO/director must deal with them promptly. Tolerating substandard performance will breed discontent among high-performing team members.
GOOD VIBRATIONS
Finally, the COO/director should strive to create an environment that makes team members want to be on the team and part of the cast — that there’s a “good vibration” running through the team. This is accomplished in several ways.
At the outset, the COO/director should promise the team members that their advocacy skill-sets will be elevated and will improve through their team participation. The COO/director then must make good on that promise by giving team members good opportunities to act like advocates, while also ensuring that team members are completely ready for performances.
Lawyers and staff who believe they are part of something larger than themselves, are growing their talents and skills and are recognized for great team and individual efforts will deliver strong, team-based performances.
David Henry Dolkas is a partner in the intellectual property, media and technology department in the Palo Alto office of McDermott, Will & Emery. This piece originally appeared in The National Law Journal, a Recorder affiliate.
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