Wednesday, March 20, 2013
Lisa Dolak on Civil Litigation Failure and Ethics Lapses, Especially in IP Cases
Recently posted on SSRN is an article by Syracuse's Lisa Dolak called Trial Lawyers in Trouble: Litigation Misconduct and Its Ethics Fallout. Its abstract is:
Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity, however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. In patent cases, in particular, often much is at stake for both counsel and client. The potential outcomes range from a judgment for the patent owner, potentially including trebled lost profits, a permanently enjoined infringer and even an attorney fees award, to a ruling that the asserted patent is partly or entirely invalid, or even unenforceable, with the patent owner ordered to pay the infringement defendant’s attorney fees. And the complexity and potential intensity only increase when multiple patents and/or multiple accused products are involved. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.
Where to draw the line can be a challenging question. And the stakes are high. Courts have the power to impose a wide variety of sanctions on parties and their counsel. The lawyers involved risk injury to their reputations and even, potentially, bar discipline. Following an overview of the key sanctions regimes available to the federal courts, this paper draws on some recent IP decisions examining litigation conduct to illustrate the range of conduct with which courts must contend and the application of various sanctions frameworks.