Ignoring the Judge Is Not Advised

02/28/08

Lawyers Terrence McMahon and Vera Elson from McDermott, Will & Emery were representing a client in a patent lawsuit. They apparently were fairly effective, getting a jury verdict of $51 million in favor of their client.


But Judge Matsch didn't agree. He had some strong reservations about McMahon's and Elson's conduct as attorneys. So strong were his reservations that he overturned the verdict and granted attorney's fees to the other side. Only one word: ouch. The Federal Circuit Court rubbed salt in the wounds, upholding the verdict's being overturned.

Why such a harsh sanction? The judge called the McDermott lawyers out, saying they employed "cavalier and abusive conduct." They "were in disregard of their obligations as officers of the court."

In short, the judge ruled, McDermott's lawyers knew their case was baseless and wasn't filed with the intent to protect a patent; rather, it was meant to drive a competitor out of business. The judge called the entire complaint frivolous. He said McDermott's lawyers basically ignored the court's rulings and "distorted both the evidence and the law" at trial.

Sentences like this pepper the ruling: "Throughout these proceedings [the lawyers] have demonstrated that when they are faced with adverse court rulings, they proceed undeterred, with only superficial observance of the court's determinations...They did so with full awareness that their case was without merit." The judge concluded they had engaged in "litigation misconduct during the trial."

McDermott's lawyers claimed that, basically, it's not their fault: the court let them get away with it, so they aren't guilty. This, needless to say, didn't fly with the judge, who pointed out several times when he had admonished them and they went ahead and ignored him. Yeah, ignoring the judge's orders is always a way to get on his good side.

I'd not want to be Elson and McMahon — can you imagine the partners' meeting when they have to explain how they screwed up a $51 million verdict and got the firm (not the clients, the firm!) socked with a likely multimillion-dollar bill for legal expenses? I'd imagine their clients probably have a malpractice claim too.

McDermott isn't backing down, though — they vow an appeal of the award of attorney's fees.

Moral of the story: think a bit before you decide to blow the judge off in your appeals to the jury. It just might backfire on you!