Carmen Bremer is a litigator who started off as a patent lawyer in BigLaw before opening her own practice incorporating patent litigation, civil rights, employment, and complex commercial litigation. The founding partner of Bremer Law Group shares her fascinating career journey: how she turned her non-technical background into a strength when explaining complex IP concepts, how she became involved in a groundbreaking class action challenge to solitary confinement, and how she has incorporated cutting-edge tech tools like Clearbrief to help her find the best evidence for her briefs.
Can you share your story of how you expanded your practice from doing primarily IP litigation to handling class action litigation that fights for the rights of the incarcerated? And what role did your legal writing skills play in that journey?
I started off as an intellectual property litigator at Haynes and Boone, LLP and then spent nearly a decade doing patent litigation at Weil, Gotshal & Manges LLP. While my practice area in BigLaw was quite focused, the writing it entailed was varied.
As someone who gravitates towards social sciences and fine arts, I came in with the idea that patent law was going to be all hyper-technical, dry and boring. While that can be true, I also came across the same range of legal issues that appear in any litigation practice. There are disputes about discovery or damages, and simply a general motion practice that might not be specific to technology. That said, technology always looms large in a practice that’s focused on IP law.
Taking otherwise dry, technical issues and writing about them in a way that's still engaging for the reader is an ever-present challenge. I don’t want the judge or her clerk to lose interest and have their eyes glaze over.
I’ve always explained to clients that, although I don’t have a technical background or a hard science degree, what I bring to an IP practice is an outsider’s perspective. I need to understand the concept for myself and then talk about it in a way that makes sense to others like me because, ultimately, it may be presented to a jury of lay people.
While it’s great that the engineers at the client company can sit down and spitball scientific concepts with the patent prosecutor or the technical expert on the team, being an effective litigator means I’ve got to be able to explain what’s going on to somebody coming at it from the outside like me. If I can’t break down the technical issues and make it interesting and tangible to myself, then we’ll likely have a problem with a jury and maybe even the judge.
I now own my own practice, but after I left Weil, I joined a boutique IP firm in Seattle, Christensen | O'Connor | Johnson | Kindness (COJK). I practiced there for almost two years before opening up my own practice with my husband and now law partner. Since starting my own firm—as many smaller law firm folks will often find to be the case—I cast a broader net beyond one practice area.
I’ll always do IP work, but I broadened the focus of my litigation practice to include employment litigation, civil rights, and class action lawsuits. A large part of my practice right now is actually civil rights work, which I stumbled into while I was at Weil. The firm has a robust pro bono practice and they allow all of their associates to participate to a really significant degree, which I think is just incredible.
There’s a dedicated pro bono partner in Weil’s New York office, and she would send around emails about new matters and ask folks to volunteer. One of these emails more than 10 years ago now was about a case that had to do with long-term solitary confinement in California based on prison gang membership. The matter involved a potential class action case based in federal court. My partner has always been pretty intrigued by prisons and gang culture and he often watched TV shows that dove into those issues. I was excited to take on a case that met at a crossroads between his interests and mine, so I raised my hand—Yes, I'd love to work on that.
I took on a large role in the class action case, and then I took it with me from Weil to COJK, where the managing attorneys were also great about letting me pursue pro bono interests. Then this case ultimately was what led us to open up our own shop after we settled with the State of California in 2015.
As a result of the settlement and as part of the plaintiffs’ counsel team, my firm now monitors and enforces the Settlement Agreement on an ongoing basis. We’re paid to do the monitoring, which is terrific because that wasn't ever something that I contemplated when I got involved in the case.
Today the majority of my practice continues to be work as plaintiffs’ counsel on behalf of the class of incarcerated people, who, thankfully, are no longer in solitary confinement. But we’re still pushing to make sure they don’t get put back into solitary for reasons that would violate the settlement agreement.
Although that work keeps me quite busy, I’ve also taken on some employment and consumer matters, and I’ve gotten to litigate some interesting complex commercial cases as well. I’ve also expanded my IP practice to include a transactional component, drafting and negotiating software licenses and other deals that involve IP.
Let’s talk about the role that evidence and discovery play in your civil rights cases. How does that compare with the role of evidence in IP litigation? More specifically, what are the challenges you might have with the record or with the documents that must be woven into a story?
The evidence in IP litigation is completely different from what I see in human rights work.
Discovery documents in IP litigation are generally technical documents like schematics drawings or sales figures for purposes of calculating damages. Depending on the technology, the technical documents can get really interesting—wind turbines and truck headlamps have been some of my favorite technologies to learn about. But sales figures just aren’t sexy no matter what you’re selling.
The evidence in prison litigation is fascinating! The record in a prisoner rights case may include a handwritten message (known as a “kite”) from one prisoner that they try to sneak over to another. And the kite may be written in code.
The gang investigators will intercept these kites and try to work out what messages they contain, sometimes even sending the coded messages off to the FBI for analysis. You isolate these highly intelligent men for long enough and they create incredibly sophisticated methods to communicate with each other without the eyes of prison staff reading their messages.
Another category of documents that I review are classification documents from the California Department of Corrections. As monitors of the Department’s compliance with our settlement agreement, we work to ensure that the prison system isn’t making an end-run around the settlement to return class members to solitary confinement. Under the settlement, they can’t put people in solitary based on gang affiliation alone, but the Department can do it based on certain disciplinary infractions.
We review the documentation that hearing officers rely on to determine when to send someone back to solitary. The hearings look very similar to criminal proceedings: there’s a document that’s essentially an indictment with supporting evidence. That evidence often comes from confidential source memos that are based on interviews that gang investigators have with prisoners, confidentially, who point out the alleged misdeeds of other prisoners, sometimes their enemies. The question is often, is this confidential source just trying to settle a beef? Or is what they say legit? And is the gang investigator even accurately documenting what the source told them?
As a result, monitoring compliance with the settlement agreement requires me to do a lot of writing because we frequently present issues to the federal magistrate judge. These legal issues often go up to the District Court and sometimes to the Court of Appeals. Right now we have two appeals pending with the Ninth Circuit.
I’m constantly writing and, unlike IP litigation, I’m frequently addressing a due process component. The arguments usually look like, here’s the evidence, there’s a massive amount of documentation that we’ve compiled over the last year or two of monitoring the Department’s actions, and here’s our conclusions synthesized in a way that shows the judge there is a systemic problem at issue here.
The story becomes, not that 85 different prisoners had 85 different things happen to them, but here are the threads of commonality between all of their experiences that makes a cohesive presentation to show an ongoing constitutional violation.
And when you’re dealing with a record that involves tens of thousands of documents and you’re trying to find those key pieces of evidence to tell the story and show the systemic practices, it really puts the wind at your back if you can leverage some powerful technology that helps you find the needles in that massive haystack.
I got the opportunity to use Clearbrief for a Ninth Circuit brief I helped write last month and it was like having a trusted associate or paralegal combing the record for me to not only make sure I was citing the right evidence, but to find documents and testimony I didn’t even have in mind when crafting a particular argument. In a way it’s like seeing my practice come full circle because now I’m letting technology help me tell the story!
The average person may not find your clients who are incarcerated to be particularly sympathetic, but you talk about your work as human rights work. How do you bring out the human experience in the stories of folks who are in prison?
This is an area of growth and learning for me personally, in particular in terms of my understanding of the importance of language in shaping how we talk about things. For example, the prison calls my clients “inmates,” but the activists who have been working on prison issues their entire careers call these folks “prisoners,” or better yet, “people in prison” rather than inmates.
I came into this work a bit haphazardly, perhaps serendipitously. I remember a conversation I had with a co-counsel of mine a while back, and she told me, “You know, ‘inmate’ is an almost pejorative term that focuses more on the time that they’re doing—on the punishment, on the designation—versus the fact that they are a prisoner, that they are a person in prison.”
In a way it’s how here in Seattle we now talk about “people experiencing homelessness” instead of “homeless people.” Our language is a powerful way to personalize these issues.
I’ve had the opportunity to meet many of the people we’re doing this work for. There are thousands of clients in our class, so I certainly haven't met even a fraction of them, but of the people that I have met, I'm struck each time by just how much we have in common. And I am also reminded of how incredibly intelligent and persistent these folks are.
But for the circumstances that they grew up in or found themselves in, they would probably be sitting here doing what you and I do. Now that I’ve made that mental shift, it comes naturally to write with compassion, with earnest advocacy to the court.
So many litigators tell me that dealing with opposing counsel who misrepresent the facts or behave overly aggressively is a major source of stress in litigation. Do you have any insights to share on how you handle this?
This is a hard lesson that I'm still trying to learn. Litigation can get so contentious, and as counsel for one of the parties it’s almost as if you drink the Kool Aid and become emotionally attached to what you see as the strength of your position and about how wrong the other side is. It is so easy to let that affect your writing.
I see this tendency creep in especially in discovery motions where there’s more leeway to bring up all of the wrongs that opposing counsel has committed, not as a legal matter, but in the course of the litigation. Occasionally it works to present things in this light to the judge. But I would say 9 times out of 10, you get your hand slapped for it. When you allow that baser instinct to take over, it’s hard to tamp down the frustration you feel when you may have been litigating against the same folks for a decade and you know exactly what they’re up to. You feel like the judge knows exactly what they're up to, and so you start to buy into thinking the judge has adopted a certain mindset and you play to that, only to get that order slapping your hand.
As a parent, I see this play out with my kids. They get so entrenched in all the wrongs they think their sibling has committed against them and they bring it to me thinking I’m looking at it the same way they are. I tend to handle it the same way as the judge, thinking, “Can you please just be reasonable? I don't want to sit here and call balls and strikes on things that I don't think are important to the ultimate legal issue.”
How do you avoid leaning into the temptation to criticize opposing counsel, knowing how judges tend to respond?
You have to bring it back to the evidence. I think it's important to go in thinking, what do I need out of this? While it would feel great to score brownie points with the client by having the judge validate that what the other party did was wrong and don’t do it again, it’s usually not necessary.
More importantly, think back to what you actually need, what’s meaningful for the client, and what the judge cares about. Usually bickering isn’t on the judge’s list!
Go back to the basics: what’s the rule and what facts do I have? Try to frame the issue before you start writing and focus on what's important. After writing, read it through and take out some of the adverbs and adjectives. I once heard a presentation by Judge Schell in the Northern District of Texas, where I used to practice, and he talked about “Rambo writing” and how it drove him crazy: writing with lots of adverbs and adjectives (and maybe a few expletives). For legal writing that is too ramped up emotionally, Judge Schell advised bringing it back down. Put another way: the judge is not as upset as you are, but you will make him or her upset and not in the way that you want or expect if you try to bring them down into the muck with you.
What do you think is unique about you as a litigator? For example, why do your clients choose you?
I've been told that my writing skills are my best strength as a litigator. I love research and writing. I do a fair amount of appellate work, which is all about digging into a particular legal issue, flipping it over and looking at it from every angle. Then you write about that almost from an academic level of depth and analysis, but the goal remains to convince someone of your position through writing. And over time I’ve grown as a trial advocate and have come to really enjoy oral advocacy as well.
More generally, I’ve been told that I’m good at connecting with people through authenticity. I see this play out both in depositions and at court hearings. I’m thinking of one Missouri case where I was in the room with the judge and four other lawyers for the various defendants. The judge said that he intended to rule for me on a privilege waiver, but before he did that, he wanted to make absolutely certain that the other lawyers got to say their piece.
The room turned into a boxing match! We just went around, and around, and around, each lawyer wanting to respond to every last point of the other. I noticed that, over the course of the hearing, I became the voice of reason in the group. All of the other lawyers were getting angry, their arguments becoming increasingly hyperbolic, and they began interrupting each other.
I have a good sense of remaining calm – firm, but calm. I learned from some very good lawyers that you don’t have to fit a particular mold but rather be authentic to you. For me, authenticity is to throw elbows when I need to, but to always remain reasonable and professional.
Over the course of the hearing, I noticed that the judge would listen to the other lawyers but then say, “Well, what does Ms. Bremer have to say on this issue?” In many ways he set me up as the mediator in the room who would show him where the truth lay amidst the hyperbole.
I saw this same dynamic play out recently during a Zoom hearing in federal district court where there were six lawyers arguing and at least a dozen more looking on. I could see everyone’s faces in all the squares on the screen. I saw people get angry, shake their heads, and visibly show they were losing their cool. After we had moved on from my part of the hearing to an issue I wasn’t even responsible for, the judge was getting frustrated with opposing counsel for not having a direct answer to her question. She looked at the group and said, “Well, maybe Ms. Bremer can help us out on this one too.”
I tend to become this voice of reason, the reliable authority in the room whatever the issue. I see this play out as well in depositions. There, it means that I can be very approachable, very friendly; I love to chat with the witness and opposing counsel off the record. Many lawyers, especially male lawyers, tend to feel like they've got to rough up the witness. I take the exact opposite approach: you catch more flies with honey than vinegar. My approach is to be polite, and I get the outcomes that I need: I've had an expert tell me after I deposed him, “Well, that was the most enjoyable, complete destruction of my expert opinion ever.” So, you just need to be authentic.
Can you share an example of a unique area of expertise you’ve developed over the course of your career?
I’ve helped to develop some of the seminal case law on the doctrine of spoliation of evidence, and that expertise has come to serve my clients in all types of litigation. My deep dive into spoliation began on my first day at Weil a few years into my practice. I was put on the team working on several related cases that ended up with substantial press coverage, called the Rambus cases.
Rambus is a company that many have called a patent troll given that it operates as an aggressive, non-practicing entity that brought a whole series of litigations against all the major DRAM manufacturers. Weil represented several of the manufacturers, including Samsung and Micron. These are companies that make the semiconductors that go in your computer.
Rambus became notorious because they engaged in massive campaigns of document destruction before they filed suit. How do we know this? Well, they documented it really well! Rambus needed to monetize their patents, which is something everybody can do, but then they also documented that they needed to “clean up” their files before they started licensing and, more importantly, litigating against the DRAM industry. People at the company literally threw shred parties with pizza and beer and trucks hauling away loads of paper, which evokes memories of the whole Enron thing with people stuffing documents into shredders.
Recently the issue of spoliation came up in my prison work. Having identified the issue, I reached out to the rest of the legal team and said, “hey, I think we’ve got a spoliation issue here.” Nobody was familiar with it, so I ran with it and worked up the spoliation legal arguments. I had some folks tell me to not even try bringing the issue up to the judge, that there’s no way that we’ll get traction on it. It turns out we won on it and got the judge to adopt an adverse inference in our favor about what the destroyed evidence would have proven. Now we’re in a position to leverage that finding in other areas of the case.
Spoliation has become a niche I’m very interested in and I’ve been able to contribute a fair amount to what is now some of the seminal case law in the Federal Circuit on the legal issue.
While I’ll save you the deep dive into the technical details of spoliation, I will share a practice tip: know when to issue a litigation hold and know what that hold needs to cover. If you’re anticipating litigation—whether you’re considering bringing it or you think it’s reasonably foreseeable that someone is going to bring it against you—it’s time to put that litigation hold in place to preserve whatever documents and other evidence may be relevant to that litigation. Err on the side of preserving too much, too soon and save yourself from possibly being on the wrong side of an adverse spoliation inference down the road.
