August 19, 2009

Bad Advocacy - Vol. 1

Welcome to a new, recurring post here at The Bench Brief. I can't predict how often it will appear, but I can give it a name. How 'bout "Bad Advocacy"? In it, I'll detail particular cases from the real world that should serve as examples of what not to do, even in the world of "fake" mock or moot advocacy. Thanks to Above the Law for our first entry.

On August 11, United States District Judge Leonard Davis (E.D. Tex., Tyler Division) issued his Memorandum Opinion and Order in the case of i4i v. Microsoft. The big news from from that decision was the accompanying Permanent Injunction that ordered Microsoft to cease selling some versions of its popular Word software program. But this being a law school advocacy blog, let's ignore that part of the case and focus on pages 42-43 of the Order, where Judge Davis discusses his reasoning behind awarding an additional $40 million in enhancement damages against Microsoft.

During voir dire, Microsoft attorney Matt Powers, a partner with the BigLaw firm Weil, Gotshal & Manges, asked jurors what they thought about companies suing not to protect a patented product, but rather just to win money. Davis had counsel approach the bench, during which the following exchange followed:

THE COURT: I understand that you just told the jury if somebody was using the patent not to compete, that that was the wrong way to use the patent?
MR. POWERS: No, not to compete; just to get money, not to protect anything. That's what I asked.
THE COURT: What about protecting the patent?
MR. POWERS: I'll ask it that way again.
THE COURT: I just -- you know, I think you're sort of misstating the law, and I don't want to embarrass you in front of the jury. But I would appreciate it if you would clean that up.
MR. POWERS: I appreciate that. I will do that.

Alas, at least according to the Court, Powers did not "clean that up." Davis wrote that "Microsoft’s trial counsel continued to misstate the law and directly appeal to the jurors’ perceived prejudices," telling the jury during opening that “we’re here because the bankers decided to achieve liquidity” and that “the banker cases are the ones where you don’t have a very successful product, and the bankers decide to try to get their money out another way.” Despite an instruction to the jury that there should be no distinction between "classes" of patent owners, Microsoft charged ahead with its "bailout" theme during closing, arguing:

[i4i] had a product that failed. They had a patent that doesn’t work. They’re asking for a bail-out. President Tyler [sic] didn’t give bankers a bail-out. We would ask for you not to give one here either.

You don't rise to be the co-chair of Weil Gotshal's 500-person litigation section by being a shady lawyer. And as Above the Law points out, he's "kind of a big deal" among IP attorneys. But this is a good example of how even a well-respected, experienced attorney can go a bit too far in making his case.


. said...

How can questioning an opponent's motivation for bringing suit ("companies suing...just to win money") be a "misstat[ement of] the law"?

While I acknowledge that failing to meet this judge where he/she was -- failing to communicate in a way where a (how shall I put this) particular judge comprehends the argument -- could be labeled "bad advocacy," as stated by counsel (rather than, as understood by the judge) it seems to be "good" advocacy to smear a plaintiff as money-grubbing.


Robert T. Sherwin said...

Brian, I don't necessarily disagree, at least to the extent D is only making a damages argument (i.e., "Plaintiff's not really hurt, he just wants money, so don't give him anything.."). But I think the judge's problem had to do with implying (if not flat out saying) that it was improper to bring suit in the first place to protect a patent that you're not using. Maybe the Fifth Circuit agrees with you (I wouldn't be shocked, quite honestly), but there's a difference between trying to characterize the Plaintiff as a money grubber and telling the jury that they should find no valid patent or infringement because the Plaintiff wasn't actually using the thing. As the judge correctly instructed the jury, whether the patent is actually being used is irrelevant to the issue of whether it is valid or has been infringed.