Every courtroom should have one of these.

Blawgletter’s theme today highlights the importance of good manners in a trial lawyer. 

Do you know who likes rude people?  Nobody!  Not even grumpy judges — and certainly not their staff.  So please remember:

1. You can’t say "courtesy" without "court".  Show it to everyone, especially your opposition.  Courtesy projects confidence.  It will please everyone except the other side, whom it will drive crazy.
2. Make friends with the janitor — and everybody else who works at the courthouse.  "Everybody" includes bailiffs, associate deputy assistant clerks, and even interns.  Trials often turn on small breaks, and you never know where the key one will come from.  Help others want you to get it.
3. Clean up your messes.  Pick up your plastic water bottles and post-it notes; put papers back in boxes; and move your equipment out of the way.  Leaving a mess implies disrespect, for which you will eventually pay.  (Bonus tip:  clean up the other side’s messes, too.)
4. Loose lips sink ships.  This WWII watchword applies anywhere in or near the courthouse.  Save your innermost thoughts and feelings for when you get safely out of eavesdroppers’ earshot.
5. Smile.  Blawgletter has never seen so many happy people as at the I. Lewis "Scooter" Libby trial.  Libby grins as his lawyers beam, displaying confidence that they may not really have.

Barry Barnett

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Internet service providers dodged a patent bullet today when the Federal Circuit upheld a summary judgment of non-infringement.  MyMail, Ltd. v. America Online, Inc., Nos. 06-1147 & 06-1172 (Fed. Cir. Feb. 20, 2007).  The decision highlights an exchange during a Markman hearing between U.S. District Judge Leonard Davis and plaintiff MyMail’s counsel — and holds MyMail to the claim construction that counsel agreed to.  Ouchie.

Barry Barnett

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Justice Antonin Scalia, wit.

Speaking of the U.S. Supreme Court, the LA Times this morning printed an article about what it perceives as Justice Antonin Scalia’s ascendance.  Blawgletter finds the subject interesting — not least because His Honor opposes constitutional limits on punitive damages and thus dissented in today’s Weyerhaueser decision (post with opinion link here) — but also because of his low impulse control.  For example:  "I’m a textualist. I’m an originalist. I’m not a nut," he told students at Claremont McKenna College this month.

Good stuff.

Barry Barnett

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Don’t expect plaintiffs to skip and
jump at today’s rulings.

Today, the returning Justices issued two important business law decisions.  The first involved a "predatory buying" theory of antitrust liability.   Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., No. 05-381 (U.S. Feb. 20, 2007).  The Court held, unanimously, that a plaintiff alleging predatory buying must show both that the competing buyer sold what it bought at a loss and that it stood a dangerous probability of recouping the loss later.  The Court thus adopted the "predatory pricing" requirements of Brooke Group Ltd. v. Brown & Williamson Tobacco Co., 509 U.S. 209 (1993), for analogous predatory buying cases. 

In the second decision, a 5-4 Court ruled that juries may not "directly" consider harm to non-parties in setting punitive damages.  Philip Morris USA, Inc. v. Williams, No. 05-1256 (U.S. Feb. 20, 2007).  The case involved claims that a cigarette company misled the plaintiff about the risks of smoking.  The jury awarded less than $1 million in actual damages but $79.5 in punitives.  The Court concluded:

In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation.

The majority emphasized juries may consider harm to non-parties in determining the "reprehensibility" of the defendant’s conduct but may not base the amount of its award "directly" on such injuries.

Blawgletter doesn’t know persactly what "cost" the plaintiff must price below (Weyerhaueser) or what "directly" considering harm to others means (Philip Morris) but does note that defendants won in both cases.

Note:  The previous version of this post described the Philip Morris decision as 6-3.  Our bad.

Barry Barnett

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Justice lives — and Justices work — here.

The U.S. Supreme Court gets back to hearing oral argument this morning after a 24-day hiatus.  See Court’s calendar.  The two-day docket includes Microsoft Corp. v. AT&T Corp., which presents questions about extraterritorial application of U.S. patent law. 

Woo-hoo!

Barry Barnett

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Prof. David Hoffman.

Blawgletter read this morning the Sidebar column by Adam Liptak in the NYT.  (Sorry; you have to read the paper version or subscribe to TimesSelect to see it.)  The item — "When Lawyers and Juries Mete Out Punishment" — attributes a jury’s $290 million punitive damages award to a Ford Motor Company lawyer’s "stupid" question.  Mr. Liptak deploys the example to conclude that America needs a "more sober" method than trial by jury to assess civil penalties for civil wrongs.

Mr. Liptak doesn’t say so, but his views echo academics who propose to substitute bureaucrafts for jurors.  See David A. Hoffman, How Relevant Is Jury Rationality?, 2003 U. Ill. L. Rev. 507 (reviewing Punitive Damages:  How Juries Decide).  The Liptakian perspective holds that juries set punitive damages irrationally — more particularly, that they don’t weigh costs and benefits of a defendant’s behavior in determining an economically efficient level of punishment and deterrence.

Blawgletter supposes that Mr. Liptak hasn’t read Professor Hoffman’s puncturing of the irrational juror analysis.  For, as Professor Hoffman explains — bravely, no doubt, while a junior associate at Cravath, Swaine & Moore LLP — most Americans don’t accept the cold reckoning of cost-benefit analysis as the keystone to meting out civil punishment and deterrence for reprehensible conduct.  The law-and-economics set equates jurors’ desire for case-specific justice with irrationality.  And, sharing as they do a Liptakian longing for a "more sober" approach, they would cure the disease of illogic with government experts wielding spreadsheets, graphs, and charts to achieve a more perfect weighing of costs and benefits.

Leave to one side, please, the truth that juries award punitive damages in less than 10 percent of the less than 10 percent of the cases that go to trial.  Also ignore for the moment that jurors often do a terrific job of choosing an appropriate level of punitive damages.  Never mind that Ford’s trial lawyer may not have committed a momentary lapse but instead reflected his client’s true attitude toward the plaintiffs.  And forget, we implore you, that — even in the astronomically small number of cases in which a jury oversteps (as Mr. Liptak believes one jury did in awarding $290 million) — judges reliably fix the problem (as indeed they did in the case Mr. Liptak cites, reducing the award to $23.7 million).

Of course, a simpler explanation for Mr. Liptak’s column may exist.  Before becoming a newsie in 2002, according to his biography, Mr. Liptak worked four years in a defense firm, Cahill Gordon & Reindel, and 10 years in the NYT’s law department, defending it against defamation and other claims. 

Lots of people complain about liberal media bias.  Could this column result from just plain old media bias?

Barry Barnett

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Anatole France.

Striking down as unconscionable a ban on class actions in an "arbitration rider" to a loan agreement, the court in Vasquez-Lopez v. Beneficial Oregon, Inc., No. A125270 (Ore. Ct. App. Jan. 31, 2007), rejected the lender’s argument that the ban favored neither side:

We are reminded of the observation by a character in an Anatole France novel that "the majestic equality of the laws * * * forbid[s] rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread."  Anatole France, The Red Lily, 95 (Winifred Stephens trans., Frederic Chapman Ed. 1894). Although the arbitration rider with majestic equality forbids lenders as well as borrowers from bringing class actions, the likelihood of the lender seeking to do so against its own customers is as likely as the rich seeking to sleep under bridges.

The court also upheld a verdict and judgment for the borrowers, who claimed that the lender engaged in "predatory" lending.

Barry Barnett

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Castor, left, and Pollux.

"The Story of Castor and Poleax" appeared in the July 2006 issue of Barnett’s Notes on Commercial Litigation, the monthly newsletter of Susman Godfrey L.L.P.:

In the June Hot Lunch column, I promised to talk this month about the story of Castor and Poleax. As students of the ancient world noted, Greek and Roman mythology celebrates Castor but knows nothing of Poleax. My apologies. Poleax refers to a medieval weapon for smiting enemies or to a device for stunning livestock preparatory to slaughter. Pollux, on the other hand, denotes Castor’s immortal twin. I deeply regret any confusion that I may have caused.

Castor and Pollux ride across the firmament at night, forming the brightest stars in the constellation of Gemini — Latin for twins. Although stories about them vary, these heroic brothers of Helen (she of Trojan fame) travel much and fight more. They join Jason and his Argonauts on his quest for the Golden Fleece. And, when a cousin slays Castor, the deathless Pollux begs his father Zeus to let him join Castor in Hades. Pollux’s fraternal devotion so moves the king of the gods that he instead allows Pollux to share his immortality with his brother. So Castor and Pollux alternate their days between Mount Olympus and the land of the dead.

Now, you may ask, what does the myth of Castor and Pollux have to do with commercial litigation? What can it teach our profession — beyond the foolhardiness of promising (as I did in the June issue) to write about something that you know next to nothing about?

Plenty. Bear with me.

Cliff Atkinson’s new book, Beyond Bullet Points, urges speakers to change the way they use the visual aid of commercial trial lawyers the world over — the PowerPoint presentation. The bullet point, that scabrous blight and ubiquitous crutch, permits presenters to bore and bewilder their audiences by projecting on a screen an outline of the words that they faithfully utter. They might as well hand out their notes!

The key insight of Beyond Bullet Points stresses the importance of using PowerPoint to impart a story and to reinforce the telling of the story with images. The book recommends organizing presentations along the lines of a screenplay, using the three-act structure that Aristotle posited millennia ago in his writings on rhetoric and persuasion.

Does this technique work? Give it a try and judge for yourself. Say you want to convince your firm to take a patent case on a contingency basis. Maybe you depict the goal of the lawsuit as recovering royalties — the Golden Fleece. The trial team may take the guise of Argonauts and the lawsuit a journey to get the Fleece back. Pictures could represent the conflict, the perils of the voyage, and the rewards of success. And Pollux, a great pugilist, might even show up as the victor in, say, a Markman hearing.

Sure, the Beyond Bullet Points approach can come off as a little too precious. But I tried it and liked the results. The mediator who saw it said my presentation "was hokey, but I loved it."

By the way, Castor and Pollux give Beyond Bullet Points one and a half stars. Let me know if you want to borrow my copy.

Barry Barnett

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