McDermott’s Shared Tab for ‘Abuse of Advocacy’ is $4.3M in Attorney Fees

Legal Ethics

McDermott’s Shared Tab for ‘Abuse of Advocacy’ is $4.3M in Attorney Fees

Posted Oct 2, 2008, 06:53 am CST
By Debra Cassens Weiss

McDermott, Will & Emery and its client Medtronic Inc. have been ordered to pay $4.3 million in attorney fees for “abuse of advocacy” in a patent case.

U.S. District Judge Richard Matsch of Denver imposed the sanction Tuesday for attorney fees incurred by Medtronic’s trial opponent BrainLAB, the Recorder reports. Both McDermott and Medtronic plan to appeal the decision.

In a ruling last February, Matsch found that McDermott lawyers had asked a jury to apply a broad reading of surgical-instrument patents on behalf of Medtronic even though he had ruled the patents were narrower. "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 at the time.

Earlier this year Medtronic was fined $10 million in a Massachusetts case for disregarding claims construction, the story says. Its firm was Dewey & LeBeouf.

Legal ethics expert Diane Karpman told the Recorder she sees a pattern in the sanctions. "The courts are sending a very clear message that they're not going to tolerate misbehavior," she said.

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Posted by Ellen Barshevsky - 1 month, 4 weeks, 1 day, 9 hours, 15 minutes ago

Of course not. I agree with this Article, 100%.

But all lawers need to be taught in school not to persue FRIVOLOUS litigation claims. My professor told me all about sanctioning lawyers. There is still a Rule 11 in courts? What was the in-house client thinking? I do not think my boyfriend would allow this type of thing to happen. He knows better, and would not approve bills for this either.

I remember my professor always banging the table telling us NEVER to comingel funds of the client and our own funds together.

That is also subject to disiplinary actions. I think the judge here made the RIGHT decision. Maybe the firm will learn to think before they litigate like this again.
Posted by jim - 1 month, 4 weeks, 1 day, 7 hours, 19 minutes ago

And then you go up on appeal and the Federal Circuit tells you that you didn’t put enough evidence in the record at trial supporting infringement (or invalidity, as the case may be) when it flips the district court’s erroneous claim construction. You’re hosed either way.
Posted by Hadley V. Baxendale - 1 month, 4 weeks, 1 day, 6 hours, 45 minutes ago

Why do we need a legal ethics expert to tell us that courts are not going to tolerate misbehavior?
Posted by RL - 1 month, 4 weeks, 1 day, 6 hours, 9 minutes ago

Monetary sanctions do not go far enough. Medtronic has a pattern of doing this, and it is clear that they are making it financially worthwhile for their lawyers to do it as well. The $4.3 million in sanctions is probably a drop in the bucket compared to the fees the law firms are generating and, especially, compared to the successful verdicts that Medtronic can expect if its lawyers are willing to skirt the rules.

This series of cases shows that lawyers will only take their obligations seriously if their licenses are on the line as well. Let’s disbar a few MWE partners and see how that impacts attorney behavior.
Posted by Andy the Lawyer - 1 month, 4 weeks, 1 day, 3 hours, 45 minutes ago

Ellen—we gat it. You have a boyfriend. We don’t care. next time you’re tempted to babble about him, stop typing and take a walk.
Posted by Michelle - 1 month, 4 weeks, 1 day, 3 hours, 12 minutes ago

I concur with Andy the Lawyer. Please stop referring to your boyfriend in your otherwise insightful comments. I understand that you are frequent and respected commentator here at the ABA Journal, but please what relevance is your opinion of your boyfriend’s alleged opinion with respect to Rule 11?
Posted by jrb - 1 month, 4 weeks, 1 day, 2 hours, 29 minutes ago

Right on 5 & 6 If Ellen’s boyfriend has an opinion I am sure he can speak for himself (maybe)
Posted by Heather - 1 month, 4 weeks, 1 day, 1 hour, 49 minutes ago

Irresponsible litigators deserve this type of sanction, so long as its not a slippery slope. In this case, the attorneys and their clients were clearly abusing the system making these type of sanctions appropriate. This is exactly the behavior that gives attorneys a bad name. Attorneys must, however, be able to zealously represent their clients based on legitimate ligitation strategies and theories without fear of sanctions if the judge just so happens to disagree with their approach. So long as there is a legitimate good faith basis for advocacy, it should be allowed. But any attorney who manufactures a case, no matter how much their client is paying them, is a blight on the profession.
Ellen, I don’t know what you’ve done to elevate yourself to being a “frequent and respected commentator,“ but it is clear to me that you have too much time on your hands to be litigating well. Moreover, you seem inexplicably drawn to the Caps Lock button. While your continued interest in current events is admirable, I don’t understand how it is you have the experience to make such observations when you seem to spend a significant amount of your time blawging. Perhaps your commentary would be better received if it was a little more focused on specific articles of interest to you where you personally have insight and experience. Just a suggestion.
Posted by Willem DeDonis - 1 month, 4 weeks, 2 hours, 45 minutes ago

I don’t think Ellen’s boyfriend is allowed to voice his opinion unless Ellen pre-approves his message. She wears the pants in that family; the poor schlepp is obviously pussy-whipped by her, but there must be something positive in it for him. I wouldn’t bash Ellen for that.
Posted by Woodside Bob - 1 month, 3 weeks, 3 days, 21 hours, 43 minutes ago

To 5 through 9, I don’t believe Ellen is real. The question is, who is Elen? My personal theory is that Debra acts as Ellen regarding postings by Martha, and Martha gets to be Ellen on postings by Debra. Just to get things going. There’s not much more lonesome than a post with no comments.

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