Legal Ethics

McDermott Ordered to Pay Attorney Fees for 'Abuse of Advocacy'


A federal judge in Colorado has ordered McDermott Will & Emery and one of its clients to pay the legal fees of an opponent in a patent infringement case because of “abuse of advocacy.”

U.S. District Judge Richard Matsch chastised two McDermott lawyers, Terrence McMahon and Vera Elson, in his ruling, the Recorder reports. He said the lawyers asked a jury to apply a broad reading of surgical-instrument patents on behalf of their client, Medtronic Inc., even though he had ruled the patents were narrower.

Matsch had previously set aside a $51 million verdict for Medtronic in the case because of “misleading trial tactics” and his decision was upheld on appeal. McMahon is chair of McDermott’s worldwide intellectual property practice group while Elson heads the firm’s IP practice group in Palo Alto, Calif.

“At trial, [McDermott]’s conduct was in disregard for the duty of candor, reflecting an attitude of ‘what can I get away with?’ ” Matsch wrote in his order issued on Tuesday (PDF posted by the Recorder). “Throughout the trial, the [McDermott] lawyers artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.”

McDermott’s lawyers had argued the court “had the obligation to stop any trial conduct that stepped over the line of zealous advocacy,” Matsch said. “In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this court has already concluded and displays the same arrogance that has colored this case almost from its inception.”

Paul Vapnek, a legal ethics expert and patent lawyer a Townsend and Townsend, told the Recorder the case will be viewed as an important cautionary tale. “This is going to get circulated around the country as a symbol of what not to do when you’re involved in litigation,” he said.

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