Please describe two of your most substantial, recent wins in practice.
I recently acted as co-lead counsel on behalf of Panduit in an enforcement proceeding and advisory opinion proceeding at the International Trade Commission against Corning. The litigation was very fast paced, even by ITC standards, because both accelerated proceedings ran concurrently.
The case settled after a full hearing for the enforcement proceeding where the Office of Unfair Import Investigations (OUII) sided with Panduit in all disputed claims and after Panduit won the Advisory Opinion.
I also represented ASUS in a fair, reasonable, and non-discriminatory (FRAND) rate-setting patent case in the Northern District of California. A colleague and I led a team to develop a then-untested theory that InterDigital engaged in unlawful monopolization in violation of the Sherman Act.
The case settled shortly after InterDigital’s Motion for Summary Judgment on the Sherman Act claim was denied, which would have led to one of the few times this issue has gone to trial.
What is the most important lesson you learned as a first-year attorney and how does it inform your practice today?
Know the facts. In my first year, I wasn’t going to be the legal expert on any issues. There were too many talented attorneys around me with much more experience. But I realized I could be a master of the facts.
Partners, who often touch many different matters, don’t have the opportunity to spend hours poring over the details of a case. And once you, as a junior litigator, establish yourself as more knowledgeable about the record than any attorney on the team, you become essential to that team. That is precisely where you want to be.
That lesson, however, is equally important as attorneys develop. When very senior attorneys ring hollow in court, it is often because they did not spend the time to understand the record.
An attorney may have a brilliant command of the law and take the perfect legal and strategic approach; however, if he or she does not know the facts, the argument becomes superficial. Until that argument is grounded in primary evidence (e.g., facts more fundamental than an expert’s conclusory statements), the law does not have any meaning. Learn the record. It is worth the time spent.
How do you define success in your practice?
Success is meeting the client’s needs. This was a difficult lesson for me. I spent far too long with a narrow view of success, expecting a grand slam in trial.
While grand slams are great, they are not always practical or even possible. Singles and doubles can be successes too. But the most difficult lesson for me is that success can also be taking your bat and going home before you even play.
I am very passionate about my cases. I always want a victory. Yet, sometimes, settlement is the best route for a client. Harder yet, sometimes the best approach is conceding a winnable argument.
There can be high-level strategic considerations that supersede an attorney’s desire for a quick victory in court. Other times, it just makes sense to take the loss on a less important issue to help a client manage legal expenses.
Success does not look the same for everyone. In fact, sometimes success will look like a loss in the press. The key is to stay focused on the client and the client’s ideal outcome.
What are you most proud of as a lawyer?
I am proud when I see my team grow and succeed as attorneys. I am not far removed from a time where one of my primary goals as an attorney was to check the boxes for getting experience: deposition, oral argument, etc.
I remember what it is like to work hard and wait for those opportunities to present themselves, and then hope the stars align so that the experience will fall to me. I strive to give associates those chances when it is in my power to do so.
Candidly, some of my effort to promote others is selfish. Litigation is fast-paced and the more work I can trust my team to accomplish, the easier my life is and the better our team performs. In the end, I am of course ecstatic to see their successes and proud of whatever small part I have played to help young attorneys achieve them.
Who is your greatest mentor in the law and what have they taught you?
My greatest mentor was Brian Nester, with whom I worked for my first eight years as an attorney. I have learned so much from Brian, but I will pick one lesson for the sake of this question: a good cross doesn’t always get you high fives. This lesson is particularly true in the ITC or courts where important post-hearing briefs are involved.
Everyone wants their cross-examination to be like a scene out of a courtroom drama, with a tearful confession on the stand from the opposing witness. Then, you strut back through the courtroom to the boisterous accolades of your co-counsel. High fives all around.
Sadly, life is not a movie.
Sometimes, the winning cross is one where you get a key, subtle admission that ties the record together to support a winning argument. It is all a set-up for the post-hearing brief, where your admission gives you the record needed to secure victory.
I have seen Brian Nester finish his crosses and leave most of the courtroom scratching their heads. Only a handful of attorneys knew what had just happened. They were the ones sweating.
Tell us your two favorite songs on your summer music playlist.
I will play anything that gets my kids dancing. Lately it has been “Count On Me” by Bruno Mars and “Sunroof” by Nicky Youre and dazy.
Brian P. Johnson works with clients and technologies across a variety of industries including high-technology and consumer electronics. He has appeared in dozens of International Trade Commission investigations and has assisted clients with litigation strategy, his firm says. Samsung’s principal legal counsel praised him for fostering new attorneys through the US ITC’s Nurturing Excellence in Trial Advocates Program. (Editor’s note: At the time of his nomination for this award, Johnson was a partner with Steptoe & Johnson.)
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