Photo by Justin Clemons.
Theodore Stevenson was earning his mechanical engineering degree at Northwestern University when he realized he did not want to work directly in the discipline as an engineer.
“I worked one summer during college assisting a mechanical engineer draft blueprints for a pipe mill,” Stevenson says. “That just wasn’t for me. I wanted something a little more competitive and interpersonal.”
As anyone who’s seen him operate in front of a jury can tell you, Stevenson made the right move. He has used his law degree from the University of Virginia to become one of the best patent litigators in the country, operating out of McKool Smith‘s Dallas office for regular clients like Ericsson. Among the secrets of his success in the courtroom are preparing witnesses to act natural and never underestimating juries.
Lawdragon: Can you describe for our readers the mix of cases you tend to handle?
Theodore Stevenson: For the last 20 years, it has been almost exclusively patent infringement, trade secret, and unfair competition cases. I typically handle complex disputes that have diverse technologies at their core.
LD: How did you first become interested in a litigation practice focused on patent and technology cases?
TS: I have always had a passion for deciphering how things work, and for tactics of persuasion. Patent litigation fuels both of those passions.
LD: What specific types of cases are keeping you busy these days?
TS: Over the last five years, I have been involved in a number of competition cases related to standard essential patent (SEP) licensing. The typical fact pattern is an impasse in licensing negotiations, after which the putative licensee contends the patent owner breached its commitment to offer Fair, Reasonable, and Non-discriminatory (FRAND) license terms, violated federal and state antitrust laws, and committed various common law competition torts.
These cases involve high stakes and litigation around the globe – usually the licensee is a global cellular handset manufacturer. A court is typically asked to set a royalty rate consistent with FRAND, and when there are large worldwide sales volumes, a variance in the royalty rate of just 1/10th of a percent can cause a swing of tens or hundreds of millions of dollars in royalties owed. The amount at stake makes these hard fought cases with no holds barred. I have had four of these cases go the distance through trial or arbitration, and several more settle, over the last five years. The wins and settlements have resulted in billions in royalties for my clients.
LD: Among some of your recent high-profile cases, can you describe one of your courtroom victories?
TS: One memorable trial for McKool Smith was the case of Ericsson v. DLink. It involved five wifi patents asserted by our client, Ericsson. We tried the case to a jury in Tyler (in the Eastern District of Texas) in a packed courtroom with more than 100 observers every day – electricity was in the air and it was standing-room only most days. That trial was memorable for several reasons.
The presiding judge, Leonard Davis, was regarded as one of the best and most experienced patent trial judges in the country, and he did not disappoint. During our trial, Judge Davis tested a new procedure in which he let the jurors ask questions of each witness. The questions were in writing and passed to the judge, and naturally the tenor of the questions gave us an insight into what the jurors were thinking after every witness. I was shocked at how relevant and sophisticated the questions were. The jury could sense this was an important case, and they stayed fully engaged through the trial, to the point where they even requested to see the source code for the accused products during deliberations!
Another reason the case was memorable was that the defendant, Intel, intervened in the case to try to make new law related to the licensing of standard essential patents, advocating for royalties of less than a penny per wifi chip. Intel ultimately lost its gambit, but had it prevailed, Intel’s position threatened to change the landscape of patent licensing dramatically for hundreds of standard essential patent owners. We ended up winning a verdict of infringement and damages of 15 cents per wifi device on three patents for Ericsson.
LD: What do you do at trial that sets you apart from other lawyers?
TS: I work very hard with witnesses before trial to make them great communicators. As trial lawyers, we set the table by picking a good jury and by setting up the themes and story lines in our opening statements. But, once the evidence begins, it is all about the witnesses. Talking to jurors after verdicts, they uniformly focus on the witnesses and their demeanor as being the turning points in their decisions. Not only do I spend a huge amount of time selecting our witnesses and working with them to testify well, but I also make sure we “draw the sting” out of any bad facts before our witnesses get crossed.
LD: What makes for a good witness?
TS: Plain and simple: answer the damn question! So many witnesses do well on direct, but then on cross they start arguing, or evading, or filibustering to the point where every answer becomes “Yes, but . . ..” It frustrates everyone in the courtroom. Jurors appreciate and remember witnesses who give them the information they need to decide the case through direct answers to questions. It is also basic respect for the jury and the trial process. Sure, there will be some bad facts or some awkward documents that will be used in cross-examination, but I always tell my witnesses to just answer directly, honestly, and without evasion. Jurors really perk up when they sense a witness is nervous – and jurors are very good at picking up on body language. Witnesses worry too much about giving the perfect answer. A natural and direct answer, even if not perfectly phrased, is usually the best and – the lawyers can always come back on redirect to clean up any misimpressions if necessary.
LD: After getting your engineering degree, why did you choose the University of Virginia over other schools?
TS: I visited the campus and was overwhelmed. University of Virginia is the most beautiful campus in the country. As an aside, I visited the campus again with my oldest daughter on an undergrad visit, and she had the same reaction. She just started at UVA and I am so proud!
LD: Is this the type of practice you imagined yourself practicing while in law school?
TS: Yes and no. Yes, I always knew I would be a trial lawyer. But, I had no idea I would be standing before judges and juries asking them to award my client hundreds of millions, or billions, of dollars on a patent infringement claim. But now I do that routinely, which I never would have believed when I was in law school.
LD: What led you to join McKool Smith?
TS: When I joined McKool Smith as a lateral in 2002, it had a unique business model. Back then, most patent infringement cases were staffed with a patent firm and a trial firm. McKool Smith was one of the first firms to combine technical competence with first-class trial lawyers. This was a perfect fit for me. This is now commonplace, but it wasn’t 15 years ago.
LD: How has your practice changed since the early part of your career?
TS: For the first few years of my practice, I handled general trial matters. I was game to try any type of case, and I did. I tried a divorce case, a death penalty habeas corpus case, multiple landlord tenant cases, a computer software breach of warranty case, an oil and gas case, two securities fraud cases, and a products liability case.
LD: Did you have a mentor who was particularly important for the course of your career?
TS: I have had several. I’ve been very lucky. When I was a young lawyer, David Godbey, a registered patent lawyer who is now a federal district judge for the Northern District of Texas, persuaded me to specialize in intellectual property law. More recently Doug Cawley and Sam Baxter, my partners here at McKool Smith and the two best trial lawyers I have ever seen or worked with, taught me how to try a case to a jury.
Perhaps the biggest impact on my career has been a jury consultant from Midland, Texas, named Don Nichols. Don has been in the foxhole with me for at least a dozen jury trials. Don has an uncanny knack for how jurors think and how to persuade. He has run hundreds of jury studies for patent cases and has sat through hundreds of jury trials. He is one of the rare individuals in the trial consulting arena that really, really gets it. Don claims to be retired now – but I would say semi-retired.
LD: Can you share the name of a lawyer you have come up against in a case that you admire, and why?
TS: Henry Bunsow, who has a firm in San Francisco. I’ve tried two jury trials to verdict against Henry. Henry is a scalding cross examiner and every trial against him is a fight to the end. But, when it is over, Henry will have whisky and a cigar with you and trade courtroom stories until the wee hours. Old school professionalism. That’s how it ought to be.
LD: What is your strategy for getting juries to understand complex patent and technology issues?
TS: Respect the jury and pick one horse. So many lawyers underestimate jurors and dumb things down too much, or commit the sin of arguing too many different issues. The collective wisdom of jurors is much, much greater than most people. Although it is highly illegal to eavesdrop on real jury deliberations, I have watched over 100 deliberations in mock trials and am convinced that jurors make a genuine effort to apply the law and reach the right result. Through the collective wisdom of a jury, no fact is lost, no break in body language ignored. So if you boil your case down to the crux of the patent, explain it directly, and trust the jury to understand it, they will. And when you are on the defense side, pick your best defense and run with it. If you don’t win on your best defense, you probably weren’t going to win on your second or third or fourth best defense either.
LD: How do you balance family and career?
TS: Let’s face it: The practice of law is not exactly conducive to work-life balance. That being said, when I don’t have to be in court we find fun things to do together as a family. We cook together and travel together, or play with the dogs. And several times I have taken my daughters along to watch when I am in court. They have seen jury trials, a Federal Circuit argument, and a Markman hearing (a pretrial hearing used in patent cases for the judge to determine the meaning of relevant terms). The side benefit is they now fully appreciate that my schedule is at the mercy of federal judges and there is not much I can do about it. While it’s difficult balancing two things that are such high priority, the long hours I put in don’t detract from my relationships with my daughters. My family is still what makes me the happiest.