Litigation Forecast 2019 Articles

Jurisdictional Analysis – Time to Trial, Favorable Courts & Other Litigation Trends

Author: Keith Harrison.

January 9, 2019


Several litigation trends set in motion by recent  events continued in 2018 and have now become the “new normal.” In 2018, D. Delaware, as predicted, overtook E.D. Texas for the largest number of patent cases filed, a trend set in motion by the May 2017 Supreme Court decision in T.C. Heartland, which made personal jurisdiction for corporations a driving force in patent litigation forum selection. Another continuing trend: trade secret litigation has skyrocketed—tripled since 2016. This is no anomaly. Macro trends like the digitization of intellectual property, surging employee mobility, and reduced patent protection for software and business methods have combined with the Defend Trade Secrets Act of 2016 to make trade secret litigation an increasingly popular and effective tool for protecting high-tech assets. D. New Jersey has the most product liability filings, in large part due to the Johnson & Johnson Talcum Powder Products Liability Litigation multidistrict litigation (MDL) filed in the last months of 2017. But D. New Jersey is also the most frequent venue for non-MDL medical device and pharmaceutical product cases, due to the large number of device and drug manufacturers headquartered in that venue, again based on T.C.Heartland.

  • C.D. California — Most trade secret filings (six percent) and largest number of trademark cases filed in 2018 (12 percent). 9th Circuit had the most judicial vacancies.
  • N.D. Illinois — Largest number of antitrust cases filed in 2018 (16 percent).
  • E.D. Arkansas — Longest time from filing to termination (1,420 days).
  • N.D. Florida — Fastest from filing to order on dismissal regardless of outcome (91 days).
  • W.D. New York — Longest time from filing to trial (1,575 days).
  • S.D. New York — Biggest damages award in 2018.
  • D. New JerseyLargest percentage of product liability cases filed in 2018 (26 percent).
  • D. Delaware — Overtook E.D. Texas in 2018 for the largest number of patent cases filed (24 percent).
  • E.D. Virginia — Fastest from filing to trial (310 days), which is less than half the average across the country (747 days). It was also the fastest from filing to SJ (276 days).

Keith J. Harrison
Partner – Washington, D.C.
Phone: +1.202.624.2560

Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia that represents clients in litigation and arbitration, regulatory and policy, and transactional and corporate matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation and government-facing matters, as well as its ongoing commitment to pro bono service and diversity, equity, and inclusion.

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