Civil to the Crime Bar, But Less So to the Civil Bar.

With regularity, CLE presentations on ethics are devoted to “civility” among lawyers, esp. litigators (that’s an alligator not in an alley), but not much about judging with civility. For many years, and in many vicinages, patent litigators acome with the reputation of being painful to deal with or outright obnoxious. It has to be wondered whether this tends to provoke derisive comments in judges’ patent case opinions; or, is it that reputation deserved. Here’s a few passages from one court, over a ten-day period, in patent rulings:

“The present motion is nothing more than an attempt to get a second bite at the apple and should therefore be denied on that ground alone.”

The “Court finds the motion confusing.”

“In effect, they may be conceding [the point]… but would nevertheless like to continue to belabor this point ad infinitum.”

The party’s “opening memorandum made no effort whatsoever to justify the motions.”

“Neither plaintiff nor defendant have given a ‘compelling reason’ [for the position taken].”

“It is unfair for counsel to blame the judge for their own failure.”

These comments emit an odour of disgust, of veiled contempt, and in a way accuse, patent counsel of being deceptive or dissembling. Is that deserved? That is known only to those actually in these cases.

During many trips to many federal courts, my belief is that the most obnoxious attorneys during trials are criminal defense attorneys. They can get away with about anything, and the Judges, fearing reversal, will let it go on without comment. The irony is that these Judges are less civil to civil litigants, than to counsel in criminal cases. No federal judge, in my experience, would say during a trial and in front of a jury that a criminal defendant’s position was “meritless,” or was a “waste of everyone’s time” – but, many would say that in a civil case.

So, I’ll stand up for the litigating patent bar, even though it includes some litigators who act like classAasses. Is it a fair for Judges to say that patent cases are the ‘most boring’ cases? Go, sit through a trial about tax evasion, or medicare overcharging, or a lot of statutory cases, and see how those excite you. Think that that patent litigator is a wiseacre? Watch some criminal defense attorney that drives a Rolls or Lambo with a vanity plate, and you often see trial theatrics that make patent lawyers looks like something from moot court class.