Lisa Dolak on Civil Litigation Failure and Ethics Lapses, Especially in IP Cases

Recently posted on SSRN is an article by Syracuse’s Lisa Dolak called Trial Lawyers in Trouble: Litigation Misconduct and Its Ethics Fallout. Its abstract is:

Misconduct in civil litigation is not a newphenomenon. Nor is it confined to particular types of cases. Because of theircharacteristic intensity, however, intellectual property cases may be morelikely to inspire bad behavior than other types of cases. In patent cases, inparticular, often much is at stake for both counsel and client. The potentialoutcomes range from a judgment for the patent owner, potentially includingtrebled lost profits, a permanently enjoined infringer and even an attorneyfees award, to a ruling that the asserted patent is partly or entirely invalid,or even unenforceable, with the patent owner ordered to pay the infringementdefendant’s attorney fees. And the complexity and potential intensity onlyincrease when multiple patents and/or multiple accused products are involved.The associated pressures seem, on occasion, to lead litigants and trial lawyersto succumb to the temptation to step outside the bounds of vigorous advocacy.

Where to draw the line can be a challenging question. And the stakes are high.Courts have the power to impose a wide variety of sanctions on parties andtheir counsel. The lawyers involved risk injury to their reputations and even,potentially, bar discipline. Following an overview of the key sanctions regimesavailable to the federal courts, this paper draws on some recent IP decisionsexamining litigation conduct to illustrate the range of conduct with whichcourts must contend and the application of various sanctions frameworks.

[Alan Childress]