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A “Solution” in Search of a Problem? The Innovation Act of 2015 and Trends in Fee-shifting in Patent Litigation

On February 5, 2015, Rep. Robert Goodlatte (R-VA) introduced H.R. 9, entitled the “Innovation Act.” Among other things, the bill would direct courts to award attorneys’ fees and litigation-related expenses to prevailing...more

Illinois Supreme Court Agrees to Decide Fiduciary Duty Claim Against Former Counsel

In a few weeks’ time over at Appellate Strategist’s sister blog, the Illinois Supreme Court Review, we’ll address the question of just how rare it is to get an unpublished decision – what we in Illinois call a Rule 23 order –...more

A Reminder From the Seventh Circuit on the Importance of Creating a Record

When the court makes an evidentiary ruling off the record, it is required to enter on the record an explanation of the reasoning behind its decision. See, e.g., United States v. Nolan, 910 F.2d 1553, 1559 (7th Cir. 1990); 28...more

SullCrom Sees Litigation Boom Despite Waning Credit Crisis

Dec. 11, 2014 (Mimesis Law) -- Karen Seymour and Rick Pepperman, co-managing partners of the litigation group at Sullivan & Cromwell, talk with Lee Pacchia about the current state of investigations and commercial litigation....more

Objective Baselessness and Subjective Bad Faith for Exceptional Case Determination Are Still Applicable Even After Octane Fitness

Bianco v. Globus Medical, Inc. - Interpreting recent Supreme Court of the United States precedent that arguably relaxed the legal test for determining whether a case is “exceptional” to warrant an award of attorneys’ fees, the U.S. District Court for the Eastern District of Texas denied a request for attorneys’ fees, finding that because the patentee failed to meet either of the prongs of the old, more stringent “objectively baseless” and “subjectively brought in bad faith” test, the case did not stand out from others. Bianco v. Globus Medical, Inc., Case No. 2:12-CV-00147-WCB (E.D. Tex., May 12, 2014) (Bryson, J., sitting by designation).more

Asset Searches and the Collection of Debt

It has become increasingly important for both businesses and individuals to receive payments that are due to them. Debtors are often delinquent in paying for goods, services or other financial obligations. When a debtor does not pay, the creditor is forced to take legal action either through a collection agency or an attorney. But before the client can decide which way to go, they have to know whether the debtor has sufficient assets to attach to secure payment. The easiest and most comprehensive way to achieve this is by conducting an asset search through a reputable asset search company. And remember, debt loses value quickly with the passing of time, so time is of the essence in obtaining your asset search reports. more

Displaying Patent Language in Patent Litigation

As lawyers, we are always arguing about documents, and we often need to display those documents in court. In patent cases, displaying documents is particularly important because the patent’s language describes the invention. In today’s post, I’ll talk about how to display this language in an understandable, readable and trustworthy form for the judge or jury. Importance of the Patent’s Language The primacy of a patent’s language comes from the patent statutes. For example, 35 U.S.C. § 112 requires that inventors describe their inventions fully and clearly, and that they point out their invention in the claims: "The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, …. The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. …" 35 U.S.C. § 112 In light of the key role of patent language, patent litigators often need to display patent language in court to argue about the meaning of the language. The Three Requirements: Understandable, Readable and Trustworthy Whenever you display document language in court, you must make sure that (1) the audience understands what is being shown; (2) the language is readable; and (3) that the judge and/or jury trusts that you are displaying the language accurately. Displaying Your Patent Language: Slides vs. Live Presentation How do we recommend presenting patent language? First, you need to decide if you will be presenting prepared slides, or showing magnified documents live on Trial Director, Sanction, an Elmo, a poster board or another live display technology in court. There are advantages to both approaches. In this post, I’ll assume that you have decided to use pre-prepared slides of patent language, and save for another day the discussion of Trial Director or Sanction versus prepared slides. Features of the Sample We often use the format above for displaying patent language because it meets the three requirements outlined above. In particular: Understandable: The format shown in the sample helps the jury or judge understand the context of the quoted language. By showing the patent in the background with yellow highlighting on the quoted paragraph, the sample visually reminds the viewer of the source patent document. Readable: The text box on the right allows us to display the key language in a clear, crisp font that can be sized for easy reading in court. Trustworthy: A slide displaying language without context can be misinterpreted as argument rather than evidence. By putting the source patent pages in the background with highlighting for the source text, the slide implicitly communicates the authenticity of the quote.more

Why Conducting an Asset Search is an Essential Due Diligence Tool

The most obvious use of an asset search is when a client is injured in an automobile accident client or personal injury case. The attorney representing his clients must use due diligence to determine whether the person or entities responsible for the clients injuries and damages have assets to attach if there is insufficient insurance coverage. An attorney’s failure to inform the client of their right to find and possibly go after assets to make the client whole, exposes the attorney and their firm to a potential malpractice complaint. Since asset searches only cost between $185.00- $300.00 on the average, it makes no sense not to conduct a search or at the very least, propose that a search be conducted to the client. If the client refuses, the attorney is covered and more important, if the search is conducted, assets may be discovered and attached thereby further compensating the client and their attorney.more

Timeline Design for Litigation: When to Use a Static Timeline

“I need a timeline.” This is how litigators often start in asking for legal graphics. This start to the graphics conversation makes sense because timelines are perhaps the most common type of legal graphic, and the most familiar to many litigators. This starting point also makes sense in light of a litigator’s goal—a litigator needs to tell a cohesive story, and the relative timing of various events can help the litigator knit those events into a pattern. To design a timeline, we need to understand how the litigator will use the timeline to tell his or her story. In this blog post, I’ll introduce some of the design questions we use at Cogent Legal to help litigators think about their timelines.more

Try E-Briefs As Part of Your Hearing or Trial Presentation

For your next trial or important hearing, you should seriously consider using an e-brief to help the judge (and the judge’s clerk) navigate and understand your argument. Cogent Legal recently helped a team of patent litigators prepare for and present at a combined summary judgment and claim construction hearing. E-briefs were an important part of that presentation to the court. If you’ve ever tried to read a 4-foot stack of summary judgment briefing in paper form, you may appreciate the utility of an easy-to-use electronic copy on your computer that lets you jump back and forth between argument, evidence and authority. Giving the judge and the clerk the ability to easily explore and understand your argument in chambers using your e-brief can be the key to success (particularly when your e-brief is submitted with an electronic copy of your hearing presentation). In this post, I’ll share a sample e-brief and review a couple of tips for e-brief success from our recent experiences.more

To Sue or Not to Sue

It is not always easy to make a decision when it comes to filing a lawsuit against a debtor. Before one can choose whether or not to sue, they should know whether the debtor has sufficient assets to secure payment or if the debtor has existing liabilities, judgments, and liens. The simplest and most comprehensive way to achieve this is by conducting an asset search through a reputable asset search company. more

Why Should an Investor or Business Conduct an Asset Search?

If used properly and if conducted by a reputable asset search company, asset searches can be used as a valuable pre-investment tool for an investor, partnership, joint venture or other business entity before entering into a contract. Often is the case when an investor or attorney has a client that is about to complete a deal and knows very little about the other side, other than what they know from “word of mouth” or Google. The question then becomes whether to take a chance and just invest and/or contract or whether one should do a little more digging to satisfy his or her “due diligence.“ Moreover, what duty does the investor or attorney have to the client to reveal potential liabilities, liens, lawsuits or state and federal criminal records that the subject has that could endanger the deal. Also, what happens to the attorney or investor who fails to inform the client, or other partners, that they could have conducted an asset search to uncover all existing liabilities?more

How Interactive Timelines Build and Strengthen Opening Statements

Employment, business and personal injury cases are ideally suited for laying out the facts in chronological order to enhance jury understanding. we generally recommend attorneys start with an interactive timeline that shows events one at a time so that the jury focuses on a single point as the attorney makes it. The interactive format also allows for document treatments so you can choose a button to reveal key documents that relate to the timeline entry. The following example is from a case (where all the names and dates were modified), and it shows the strong functionality possible with the interactive format. My clients realized that when we finished the timeline with all the dates, entries and documents, not only did they have an engaging, effective tool to present their case; they also had their entire opening statement finished! They could simply go through each entry with the jury in opening and discuss the issues. This sample case arises out of a real estate dispute where it was alleged that a buyer of property continued to add numerous expensive extra items to the house he was purchasing, and then tried to back out of the deal after they were built. more

A PowerPoint Sample for Business Trial Lawyers

The Association of Business Trial Lawyers recently asked Cogent Legal to prepare the graphics for a presentation on mock trials. The panel consisted of some of the best jury consultants in the country exploring the factors that make successful and worthwhile mock trials. This panel discussion gave my firm a chance to do a fun slide-based presentation for the jury consultants, which is often not possible in the serious world of litigation. While this presentation (embedded below) was intended to be playful, it provides a good example of some of the techniques I blog about concerning do’s and don’ts for PowerPoint or Keynote presentations. If you scroll through the presentation slides below (uploaded using a tool I recommend, Slideshare), first you will notice that there are very few words overall. We mainly used pictures, not text, that relate to the topic of discussion. The primary cause of dreaded “death by PowerPoint” is bullet points that the presenter simply reads to the audience as the points show up on the screen. Secondly, audience members appreciate a template style they have not seen before. The background on this slide presentation was custom made in Adobe inDesign so it would look fresh to the viewers. Thirdly, the images chosen are big, clean and immediately understandable without explanation. These three guidelines almost always will guarantee a nicely done presentation that an audience will respond to. more

The Litigation Graphics Lesson in the "Wealth Inequality in America" Video

I always like to share examples of what I consider powerful graphics to give attorneys ideas on what’s possible to create for use in litigation. This morning, I was struck by a video going viral that describes economic inequality in the United States. Regardless of your politics, and whether you believe that the widening gulf between the poor and super-rich is a serious problem or mere propaganda of the Occupy Movement, I hope you’ll watch this video because it’s a fantastic example of how to show data in an effective and engaging way. In particular, if you’re an attorney who presents cases with large amounts of economic facts and figures, you’ll want to see how this video combines storytelling with clean, simple and powerful data visualization techniques. ... Imagine trying to follow, understand and remember this data if you had your eyes closed and just listened to the narrator, without watching the video. It would be a lot harder—and less interesting—to follow, wouldn’t it? The same is true when attorneys present fact- and number-heavy arguments to jurors. Without visual aids, the jurors have a more difficult time following along. Visual aids—especially dynamic, clean graphics that build an engaging narrative—help the attorney hold the jury’s attention and drive the point home.more

How Graphics Help the President Persuade and Can Help Attorneys Too

In this post, I show some examples from the State of the Union Address that might help attorneys improve their own use of charts and graphs in litigation. Visualizing and presenting data in an engaging, persuasive way is critically important for numbers-heavy cases involving financial transactions and economic data. I’ve seen attorneys present graphs and spreadsheets that are about as interesting as watching paint dry. The president’s team, by contrast, created graphs that hold the viewers’ attention and strengthen the points he makes orally. Let’s look at a couple of ways the White House graphics use effective techniques to push the president's point of view fairly but persuasively.more

The Weekly Brief: Abu Hamza On Trial, Wells Fargo Sued, Bingham Cuts Costs

Oct. 11 (Bloomberg Law) -- Bloomberg Law's Lee Pacchia runs through the week's most important legal news. Islamic cleric, Abu Hamza al-Masri, has been extradited from the United Kingdom to stand trial on terrorism charges in the United States. Also, US Attorney Preet Bharara sued Wells Fargo over allegations that the bank made reckless loans that caused hundreds of millions of dollars in losses to a federal insurance program. The show closes with a look at a developing trend among large law firms hoping to cut back-office costs.more

Document Review in Litigations and Investigations

What is written is fundamental to the Phoenix business laws, so obviously document review is crucial in the litigation process. It is a key to the discovery process. According to KPMG, first level document review can be anywhere from 58 to 90 percent of the total litigation cost. Doing it right is crucial to a successful outcome. Failing to notice a significant document may result inadvertent disclosure of a privileged document or a significant document only showing up at a deposition. Getting it right, particularly with data rich electronic information requires training and understanding of the basic guidelines. Counsel’s Duty of Supervision: Information-Gathering Stage: Choosing the ESI Vendor and TTS Team: Introducing the Team to the Matter and Training Them: Second-Level Review: ........more

What Business Owners Should Look for in a Business Law Firm and Business Legal Representation

In selecting a law firm for an owner-operated small or medium sized business (aka “SMB’s”), we can start with some basic positions: 1. The law firm client is well advised to choose a lawyer, not a firm.... 2. Many smaller boutique law firms were started by successful larger firm attorneys.... 3. Substantial fees are required to carry large firm salaries, overhead (and egos). 4. Many large law firm attorneys may have no clue.... Things to look for in selecting an attorney include 7 items.... more

Starting Your Own Law Practice

IV. Conclusion. This brief article can get you started. The underlying question is whether you are cut out for owning and operating your own practice. I have had brilliant attorneys who wanted to practice law, not business, or who came from government work and didn’t know or think in terms of the need for good billing practices to survive, or who came from big firms and considered it an affront to make their own copies. If you own your own business you may have to start out by being the “chief cook and bottle washer” and knowing how to put toner in the copier without getting it all over you and the floor and in the middle of a rush filing. So, in addition to the business “skill-set,” you need the business “will set.” You need to really want to have this “business child;” if you don’t, then I would be looking for alternatives, like a partnership, with the roles carefully defined, using a business lawyer to help you do this. Whatever you decide to do: Good luck! more

Extreme Magical Thinking: TEchnology Won't Take You Off the Hook

I have been encountering a lot of magical thinking recently when talking with law firm partners about Legal Project Management. One partner, hoping that the IT and KM folks can simply buy a tech solution so that he could avoid making any real changes to the way he manages matters, engaged in extreme magical thinking when he asked, “isn’t there just some software where I can click one button and it manages everything?” He just wants to keep doing what he’s always done and have technology somehow make the result different.more

Attorney Who "Excessively Reviewed" Privileged Documents Misappropriated By His Client Was Properly Disqualified

Clark v. Superior Court, 196 Cal. App. 4th 37 (2011) While he worked as VeriSign’s chief administrative officer, Grant Clark signed VeriSign’s nondisclosure agreement, which included a provision that he would not remove VeriSign’s confidential or privileged information and that he would return any such documents in his possession upon termination of his employment. Clark was terminated effective December 31, 2008, and in January 2009 he filed a lawsuit against VeriSign through his attorneys, Higgs, Fletcher & Mack LLP.....more

"Hybrid" Fee Agreements for Business Litigation

"Increased milaeage" agreement allows the attorney and client to go those extra miles to obtain a great result. More businesses are asking lawyers to prosecute cases on a contingency or reduced rate. A straight contingency fee agreement is not well suited for business litigation. A reasonable alternative is a “hybrid” fee agreement wherein the attorney is paid a reduced hourly rate, along with a contingency fee. However, drafting such a “hybrid” fee agreement can be more difficult than counsel might think. A mutually beneficial agreement can be reached if counsel pays close attention to the applicable Rules of Professional Conduct concerning charging liens and contingency fees. In addition, because many business cases potentially involve the award of attorney fees, how those awards will be handled are of critical importance.more

Draft Defamation Bill published in the UK - Whats inside the consultation?

The Ministry of Justice in the UK has published a consultation paper considering a draft defamation bill. Here we peek into the consultation: The consultation paper is divided into two main parts: consultation on proposals which have been included in the draft Bill at Annex A, and consultation on other issues which have not at this stage been included in the draft Bill. more

News from Ellyn Law LLP Business Litigation & Arbitration Lawyers

An update of news from Ellyn Law LLP, a business litigation and arbitration boutique in Toronto, Canada and a member of the International Network of Boutique Law Firms. Among the news posts are the addition of a new associate, Belinda Schubert, and the appointment of senior partner Igor Ellyn to the Panel of International Commercial Arbitrators of the Canadian Chamber of Commerce. More information about the firm, its practice and articles written by its lawyers are available on and on more

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