The Supreme Court yesterday unanimously dodged the question that many thought it would answer — whether a plaintiff alleging employment discrimination may use "me too" evidence from other workers who had "similar" experiences.  The Court instead held that the trial judge may or may not have messed up in disallowing such evidence but that the court of appeals definitely did screw the pooch in concluding that the judge’s ambiguous reasoning showed a mistake.  The Court accordingly remanded the case to give the district court a chance to sort out the evidentiary question and possible retrial.  Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (U.S. Feb. 26, 2008).

Judges decide discrete issues discreetly.

The Federal Circuit today upheld a judgment against Microsoft for infringing a patent on a "point and shoot interface" that links spreadsheets to database records.  The court also vacated a post-judgment award of $0.12 per infringing unit because, it held, the lower court didn’t explain the amount in enough detail.  A reasonable royalty, the court pointed out, should take into account that the judgment of infringement changed the parties’ legal relations and heightened the risk to the infringer.  Amado v. Microsoft Corp., No. 06-1236 (Fed. Cir. Feb. 26, 2008).

Blawgletter got a whiff of an impression that the panel believes the district court ought to increase the per unit award above $0.12 — possibly to as much as $2.00 per unit.  See id., slip op. at 14 n.2 (suggesting that royalty could range between $0.04 and $2.00).

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Do character and passion count in rhetoric?

Aristotle would say that a user of rhetoric may never rely on words alone to convince his or her audience.  The speaker/writer must also pay due attention to emotion — what the old Greek guy called pathos — as well as to the most powerful persuader of all — the person’s ethos or individual character.

Words and their logic — logos, the third leg of the tri-leginous rhetorical stool — play a huge role in law and rightly so.  They also stand out in political presentations.

But the persuasive power of a speaker depends vitally on the character he exhibits to his or her hearers and the passion he or she arouses in them.  Aristotle thought a speaker/writer had to display all three aspects of rhetoric to maximize persuasiveness.  Logic and words are essential, but they’re a distant third in the rhetorical hierarchy.

Barack Obama has attracted much comment about his rhetoric.  Most reports focus on his words.  See, e.g., The Washington Post today.  We urge you to judge for yourselves whether the things he says account for his remarkable success so far — or whether it’s the emotion that Obama makes people feel and their sense of him as a human being.

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Yoda would never use his Jedi Council position to hire a lawyer on a no-bid basis.

Blawgletter just noticed an interesting parallel. 

As we reported (again) yesterday, the editorial page at WSJ has a hootin’ good time taking whacks at contingent fee lawyers who provide campaign cash to state attorneys general who retain them.

This morning we realized that the NYT editors follow a strangely similar track.  They complain about hourly lawyers who get no-bid contracts from U.S. attorneys.  The prime example involved former Attorney General John Ashcroft, who stands to earn up to $52 million for the "monitoring" gig.

Tit for tat.

We’ll leave it to our Dear Readers to decide which kind of sweetheart arrangement offendeth them more or causeth greater harm.  (Although we note that the contingent fee deal at least guarantees some kind of return to the hiring party.)  We’ll instead repeat our faith that a dose of competition — in this area as in so many others — would avoid a multitude of potential sins.

Who lives in a pineapple under the sea?  Hint:  Not Yoda.

Trolls, trolls, trolls!

The WSJ reports tonight the unmasking of he who cast unrelenting asparagus on patent trolls — Rick Frenkel, director of intellectual property at Cisco Systems.  The asparagus-caster ridiculed patentholders who didn’t "practice" their inventions and instead went around suing the pants off of companies that did.  Including dear Cisco. 

Mr. Frenkel, in the secret guise of Patent Troll Tracker, tossed the green vegetable at the hiding-below-bridges set for quite awhile.  See his coming out post here.

Blawgletter senses a small irony in Mr. Frenkel’s story.  His hiding strikes us as classically troll-like behavior.  Maybe that’s why he seemed to know his enemy so well.

Yeah, those dolls freak us out too.

Last Friday, the Fifth Circuit reinstated a damages award (for trademark infringement) more than 5000 times bigger than the amount the district court allowed after receiving supplemental evidence.  The lower court cut the damages to $227.10 from $1,256,635 because the defendant, an agricultural cooperative, showed that its taxable profits amounted to the far smaller figure.  The Fifth Circuit held that the true profits from the coop’s infringement equaled its taxable profits plus the profits it passed through to its member-owners.  Am. Rice, Inc. v. Producers Rice Mill, Inc. , No. 06-20645 (5th Cir. Feb. 22, 2008).

Our feed will have the steamed white rice, please.

The WSJ seems to have always revelled in a personality split.  Its excellent reporters ferret out objective facts; the editorial page simultaneously swats at whatever figurative bee the malefactors of greath wealth perceive in their bonnet.  Today proves no exception.

Jamie Heller and Nathan Koppel write this morning that "the nation’s largest law firm are bracing for a period that might not be so flush" as during the late boom.  And they cite actual evidence.  "Why Big Law Is Bracing for a Leaner 2008".

Towards the back of the first section, though, the editors whip out their favorite flail — the one with which they beat the dead horse of contingent fee lawyers who obtain outstanding results for state governments.  The lawyers’ crime?  Earning big fees while contributing to campaigns of the state attorneys general who hire them.  "Lawsuit Inc."

Blawgletter doesn’t know about you, but we do wonder why the WSJ doesn’t spurt some of its vitriol on the Wall Streeters who — among other things — charge enormous fees to state and local governments for financing their vital functions while costing their citizens billions in the concatenations of the still-cascading subprime mess.

Lawyers who earn fees only when they benefit their clients v. bankers who pocket millions despite hurting them.  Hmmm.

Our feed sometimes wakes up cranky on Mondays.

Would you buy a study of tort reform from this man?

The, uh, gentleman who runs the Texas House of Representatives issued instructions to various House committees last November.  Speaker Tom Craddick charged the Committee on Civil Practices (yes, it’s plural) to research five things.  He put this at the top of the list:

Study the cumulative effects of Texas civil justice reforms enacted since 2003, with particular attention toward effects on Texas job creation, judicial efficiency, medical access, and medical malpractice insurance rates.

Blawgletter’s heart leaps at the thought of laying bare the true "effects" of recent "civil justice reforms" in the state from whose craggy soil we sprang and whose increasingly smoggy and substandard air we breathe every day.  Less justice!  Greater cost!  Additional despair!  Further cynicism!

We somehow doubt that the Honorable Speaker had those effects in mind.  But we do imagine that an objective look at the data he does want the Committee to examine would reveal some unpleasant facts:

1. Texas job creation.  Reforms aimed to cabin or eliminate tort claims, substantively and procedurally, and therefore to cut the resources that go into obtaining compensation for tort victims’ injuries.  The savings might, in theory, "create" more Texas jobs — either because bidnesses now have more money to pay additional workers or because the reforms immunize the harm-causing work that before the reforms resulted in tort liability.  (We can talk about externalities — forcing others to subsidize your harmful activities — another time.) 
2. Judicial efficiency.  We suppose that by efficiency the Speaker meant how much more quickly courts dispose of tort lawsuits.  (Because, you know, he really cares about expediting entry of judgments that favor plaintiffs.)
3. Medical access.  This one looks like an invitation to count the number of doctors, nurses, nurse practitioners, and other healers who’ve streamed into the Lone Star State since 2003.  (Including the hacks.)
4. Medical malpractice insurance rates.  Have rates gone down?  (Does association equal causation?) 

Blawgletter would emphasize different — or at least more — questions.  To wit:

1. Who pays the cost of not compensating tort victims adequately?  Tort liability shifts loss from victim to wrongdoer.  The loss doesn’t vanish just because the wrongdoer eludes full responsibility.  It just means that the tort victim absorbs the loss — or passes it on to taxpayers, and society generally, in the form of things like "free" healthcare at the county hospital emergency room, food stamps, disability payments, unemployment benefits, and the victim’s general inability to contribute as an active and able citizen and taxpayer.
2. Does rationing civil justice make sense?  We favor efficiency in litigation but not if it means shorting individual cases.  Over the last decade, the number of civil trials has plummeted in Texas state courts while the number of cases that judges have taken out of the hands of juries has skyrocketed.  In a representative democracy, can we afford that kind of rationing?
3. Have we started attracting better medical professionals — or the less capable?  And do poor and working class people benefit from the larger numbers?  Or do they still go to the emergency room for their primary care?
4. What’s happened to the insurers’ underwriting profits on malpractice policies?  They’ve gone way up.  See, e.g., this.

Our feed wakes up with more hope every day.