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Judge makes lawyers pay for frivolity

Old 02-26-08, 10:26 AM
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Judge makes lawyers pay for frivolity

http://www.denverpost.com/popular/ci_8354619

Judge makes lawyers pay for frivolity
With the verdict overturned, two attorneys must pay the others' fees.
By Mike McPhee
The Denver Post
Article Last Updated: 02/25/2008 02:53:25 AM MST

A federal judge recently got so infuriated by the conduct of two highly regarded trial attorneys that he overturned a jury's $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars.

U.S. District Senior Judge Richard P. Matsch sanctioned attorneys Terrance McMahon and Vera Elson of the firm McDermott, Will and Emery, of Chicago and San Francisco, for "cavalier and abusive" misconduct and for having a "what can I get away with?" attitude during a 13-day patent infringement trial in Denver.

He ruled that the entire trial was "frivolous" and the case filed solely to stifle competition rather than to protect a patent.

Neither McMahon nor Elson returned phone calls. But their firm defended them by stating it "believes in vigorous and ethical advocacy on behalf of our clients. While we respect Judge Matsch, we disagree with the conclusions of the opinion and believe that it will be reversed on appeal."

The U.S. 10th Circuit Court of Appeals saw it differently and affirmed Matsch's decision to overturn the verdict.

News of Matsch's ruling swept through the legal community.

"In 42 years of litigation, I've never seen a judge set aside a verdict, then award fees to opposing counsel," said local attorney Robert Miller, of Perkins Coie LLP. "There are times when a verdict is set aside, and times when lawyers are sanctioned. But I've never heard of them happening in one case.

"Judge Matsch does some things that are out there, but he's usually right. Very infrequently is he reversed on appeal."

The case began in 1999, when Medtronic Navigation Inc., a Minnesota-based firm with a manufacturing facility in Louisville, sued its competitor, BrainLab Inc., a multinational German company, claiming it had lost more than $100 million because of patent infringement. Both companies manufacture surgical instruments that guide a surgeon's scalpel very precisely in difficult situations such as the removal of a brain tumor. The guidance technology was the core of the case.

For three years, the two companies couldn't negotiate a settlement. Medtronics even tried to buy BrainLab but was rebuffed. So Medtronics fired its lawyers and hired McDermott, Will and Emery to take the case to trial.

After presiding over the 13-day trial, Matsch wrote that McDermott's lawyers not only disregarded his instructions during the trial but argued "with full awareness that their case was without merit."

BrainLab's lead attorney, Jay Campbell, said, "We're very pleased with the decision. The judge wrote eloquently about the improprieties, that they had litigated to end competition rather than to enforce the patent."

Campbell has until March 12 to present his bill.

------------------------

This is pretty much one of the strangest stories I've ever heard in the legal community. There's also lots of things wrong with it in my view:

1) If the case was "without merit", then why did the Judge not rule on summary judgment and dismiss it prior to trial? He didn't, so it's clearly disengenous to say it was without merit.

2) If the case was so without merit, how did a jury award a $51M verdict? How shitty were the judge's instructions and evidentiary rulings that enabled that result?

3) EDIT - Usually under Rule 11 and the caselaw, awarding attorney's fees is a severe sanction not to be awarded without due consideration (usually means there have been other previous sanctions and fines). It's not the first step on the sanction scale. And to award it post-verdict to a WINNING party may without precedent.

Seems like the judge has a personal vendetta here and it's a shame the 10th Circuit couldn't see that.

Last edited by DVD Josh; 02-26-08 at 11:49 AM.
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Old 02-26-08, 10:37 AM
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Poor trial lawyers

I hope this sticks - and sets a precedence in other jurisdictions.
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Old 02-26-08, 10:37 AM
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Originally Posted by DVD Josh

This is pretty much one of the strangest stories I've ever heard in the legal community. There's also lots of things wrong with it in my view:

1) If the case was "without merit", then why did the Judge not rule on summary judgment and dismiss it prior to trial? He didn't, so it's clearly disengenous to say it was without merit.

2) If the case was so without merit, how did a jury award a $51M verdict? How shitty were the judge's instructions and evidentiary rulings that enabled that result?

3) Awarding fees has to be authorized by statute or contract, and I doubt that was the case here. He seems to be basing it on bad faith, which should have been hard to uphold on appeal.

Seems like the judge has a personal vendetta here and it's a shame the 10th Circuit couldn't see that.
Just speculation....

1) Perhpas there seemed like the possibility that there could be a basis based on what was said at the pre-trial hearing, and the lawyers mislead the judge as to their case.

2) Juries can react to emotion rather than the law. Patent infringement cases are the most often overturned on appeal because of the complexities.

3) I guess we will see.
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Old 02-26-08, 10:44 AM
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Originally Posted by DVD Josh
3) Awarding fees has to be authorized by statute or contract, and I doubt that was the case here. He seems to be basing it on bad faith, which should have been hard to uphold on appeal.
It's been a long time since I took civil procedure, but in Federal courts, doesn't Rule 11 allow the awarding of fees and costs?
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Old 02-26-08, 10:53 AM
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Originally Posted by CPA-ESQ.
Poor trial lawyers

I hope this sticks - and sets a precedence in other jurisdictions.

As an FYI - these are not your typical "trial lawyers" that most folks on this forum love to bash. These are corporate defense lawyers in a huge firm representing a large client.

There are abuses on all sides, but the "true" trial lawyers (who represent individuals and plaintiffs) tend to get the most heat. While I am one of those kinds of lawyers, it always makes me smile when I see scummy corporate lawyers get sanctioned since I've been on the other side of their abusive litigation tactics.
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Old 02-26-08, 11:13 AM
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Originally Posted by CPA-ESQ.
Poor trial lawyers

I hope this sticks - and sets a precedence in other jurisdictions.
McDermott is not a "trial lawyer" firm, at least not in the way most people mean "trial lawyers."

Edit: Like orangerory said. He's right about this (even if he is a scummy plaintiffs' lawyer)

Last edited by JasonF; 02-26-08 at 11:15 AM.
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Old 02-26-08, 11:17 AM
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So, will the law firm actually have to pay the fees or will Medtronic end up with the bill while the lawyers still get their paycheck?
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Old 02-26-08, 11:41 AM
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Originally Posted by CaptainMarvel
It's been a long time since I took civil procedure, but in Federal courts, doesn't Rule 11 allow the awarding of fees and costs?
Doh. I misspoke. What I said is accurate, but not applicable here. You are correct, I just looked at it, and it does. Still attorney's fees is a huge sanction, and you usually don't get there at the first step, especially when you are post-verdict.
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Old 02-26-08, 12:15 PM
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Link to the order?

[EDIT] Found it here.

Last edited by drmoze; 02-26-08 at 12:26 PM.
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Old 02-26-08, 12:26 PM
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I hope this judge is the one assigned to the cussed at police dog case.
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Old 02-26-08, 02:00 PM
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Originally Posted by kvrdave
Just speculation....

1) Perhpas there seemed like the possibility that there could be a basis based on what was said at the pre-trial hearing, and the lawyers mislead the judge as to their case.

2) Juries can react to emotion rather than the law. Patent infringement cases are the most often overturned on appeal because of the complexities.

3) I guess we will see.

I'd agree with this. I can see not granting SJ, particularly since there was probably some dispute of facts. The trial fleshed these facts out and in the end there was nothing left to stand on. In fact, they quite probably misrepresented their pre-trial position.

Not to mention it was a patent case, which is a big clusterfuck of confusing technology. I can't fault either the judge for not granting SJ on something he quite probably didn't fully understand or the jury for possibly get confused by the whole thing.

Still, considering the trial was initially won, I'd have a hard time seeing why fees were granted. Maybe more specifics would help me understand, but it does seem excsessive.
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Old 02-29-08, 12:32 PM
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Originally Posted by DVD Josh
I misspoke.
Lawyer-speak for "I was wrong"?

No wonder the jury got it wrong too. They had teams of lawyers "misspeaking" to them, in rotas, for 13 days.

Maybe all the lawyers' fees should go to the jurors as compensation for their having to sit through the cavalier, abusive and frivolous case, which was without merit.
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Old 02-29-08, 12:52 PM
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Originally Posted by orangerory
As an FYI - these are not your typical "trial lawyers" that most folks on this forum love to bash. These are corporate defense lawyers in a huge firm representing a large client.

There are abuses on all sides, but the "true" trial lawyers (who represent individuals and plaintiffs) tend to get the most heat. While I am one of those kinds of lawyers, it always makes me smile when I see scummy corporate lawyers get sanctioned since I've been on the other side of their abusive litigation tactics.
The scummy trial lawyers and scummy corporate lawyers are a small minority, as I'm sure you're aware. And I always laugh when someone suggests that the poor, little ol' trial lawyers are taken advantage of by the big defense firms. I do defense work, and the plaintiff's bar is often more organized than the defense. They have national networks to deal with recurring litigation (such as construction equipment litigation, which I defend). While I'm sure there are individual cases of big firms trying to bury the solo practitioner in paperwork, that's not what I see on a day-to-day basis.
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Old 02-29-08, 02:39 PM
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Yes! Justice!

Penalties for filing frivolous lawsuits!
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Old 03-01-08, 12:49 AM
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Originally Posted by Bandoman
The scummy trial lawyers and scummy corporate lawyers are a small minority, as I'm sure you're aware. And I always laugh when someone suggests that the poor, little ol' trial lawyers are taken advantage of by the big defense firms. I do defense work, and the plaintiff's bar is often more organized than the defense. They have national networks to deal with recurring litigation (such as construction equipment litigation, which I defend). While I'm sure there are individual cases of big firms trying to bury the solo practitioner in paperwork, that's not what I see on a day-to-day basis.
As a sole practitioner who has taken more than his share of cases versus larger defendants, my experience has been that big firms almost always attempt to paper the small guy into oblivion. Heck, I almost wouldn't respect them if they didn't act in this manner.
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Old 03-03-08, 10:59 AM
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I am shocked and outraged that Bando is not a scummy lawyer. My abiding hope that he was constituted 90% of my obsessive, slavelike attraction to him.
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