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52 U. Louisville L. Rev. 225 (2014)
Trial Lawyers in Trouble: Litigation Misconduct and its Ethics Fallout
Lisa A. Dolak*
Abstract

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity, however, intellectual property (IP) cases may be more likely to inspire bad behavior than other types of cases. In patent cases, in particular, often much is at stake for both counsel and client. The potential outcomes range from a judgment for the patent owner, potentially including trebled lost profits, a permanently enjoined infringer and even an attorneys’ fees award, to a ruling that the asserted patent is partly or entirely invalid, or even unenforceable, with the patent owner ordered to pay the infringement defendant’s attorneys’ fees. And the complexity and potential intensity only increase when multiple patents, multiple accused products, or both are involved. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

The trial judges in each of the IP cases discussed herein wrestled with the issue of whether certain litigation tactics crossed the line between advocacy and abuse. The decisions contend with a range of conduct, occurring at various phases of litigation. In several, the trial courts’ decisions to sanction were reversed or modified on appeal or reconsideration. Accordingly, these cases shed light on a question which challenges courts, litigants, and trial counsel: when it comes to zealous advocacy, how much zeal is too much zeal?

Where to draw the line can be a challenging question.

* Angela S. Cooney Professor of Law, Syracuse University College of Law. I acknowledge, with gratitude, the excellent research support provided by my research assistant, Alison Taroli. I can be reached at ladolak@law.syr.edu.