Bill Griffith’s “Zippy the Pinhead”
More or less true anecdote: Two companies spent over $200,000 each on attorneys’ fees and expert fees heading into trial on a narrow patent dispute and the multiple million dollar dispute hinged on the words, “operates via buoyancy.”
Each side hired experts who, with the help of top-tier lawyers, tried to walk the jury through different ways to understand the meaning of “buoyancy,” as the word, “buoyancy,” was used in the relevant patent.
After each side took several days to put on their respective cases, the matter was given to the jury to decide. The jury sent out a note as they deliberated. “What does ‘operates’ mean?”
Neither side had devoted a minute of their presentations to this part of the disputed patent words.
You cannot make this stuff up.
Trial lawyers have to be ready for anything. They have to think fast and they need to act fast. And if something odd happens at trial or in the immediate aftermath and you don’t deal with it quickly, you can lose the chance for good. The lawyers in the buoyancy shipwreck never saw it coming. They probably never had a chance to avoid the hidden risk of jury confusion (if, in fact, the jury was confused (maybe it was the lawyers and their clients?)). but in another recent case, trial lawyers seem to have missed a narrow window of opportunity to fix a jury deliberation snafu…
Minnesota Litigator focuses on Minnesota civil litigation but I go on walk-abouts from time to time around the 8th Circuit and elsewhere.
It’s a little chilly around here this time of year and probably a lot warmer today in the Land of Clinton/Huckabee, better known as Arkansas. I invite you to come with me to Arkansas for a quick sojourn into the challenges of civil litigation and the lesson of speaking up right away or forever holding your peace.
The jury came back in the case of Yazdianpour et al. v. Safeblood et al., finding in favor of the plaintiffs on a breach of contract claim, awarding damages of $786,000. They also found that the defendants violated the Arkansas Deceptive Trade Practices Act (“ADTPA”) (selling a U.S.-patented technology overseas, but failing to mention that there could be no overseas patents because the time had lapsed to get them). For the ADTPA claim, the jury awarded no damages. The plaintiffs’ lawyers argued that this was impossible — that the jury could not have found in favor of plaintiffs on the ADTPA and not awarded damages or else that would be a finding in favor of defendants. It’s an inconsistent or incoherent verdict.
Unfortunately for the plaintiffs’ lawyers, they did not have the presence of mind immediately upon notice of the jury verdict to immediately raise the issue. And they lost the chance to raise the issue. You really can’t blame them. The judge was not even present when they jury came back with its verdict. Indeed, often, in these cases, the lead lawyers are not even there when the jury returns its verdict. They may already have moved on to their back-log. (Their desks email inboxes are twelve feet (and two gigabytes) under “to do” items that accumulated when they were in trial.)
Furthermore, in my experience, when juries reach verdicts, it is often toward the end of the day. No one is particularly interested in hanging out. In fact, there is a palpable sense throughout the courtroom, win, lose, or draw of “Finally done…Let’s get outta here.”
Practice pointer: CIVIL LITIGATION, MORE OFTEN THAN NOT DOES NOT END WHEN THE VERDICT COMES IN. RESIST THE TEMPTATION TO SCURRY HOME TO REUNITE WITH THE PATIENT FAMILY. RESIST THE TEMPTATION TO FIND THE NEAREST BAR TO QUAFF YOUR DEEP THIRST FOR SUDS. HOLD OFF ON THE URGE TO TEAR OUT OF THE COURTHOUSE TO FINALLY GET SOME TIME TO YOURSELF. Keep your head in the game. This can take a high degree of focus and it can be critical.
Seth Leventhal is a Minnesota civil litigator with 19 years of experience as a Minnesota trial lawyer. I have appeared in over 150 civil cases in Minnesota state and federal court (and several in other states, as well). I have been part of a trial team that won a $10 million jury verdict in a breach of contract action (Klapmeier v. Cirrus Industries, Inc., Court File No. 27-CV-12-20846 (Hennepin Cty.) and a part of a team that defeated a multi-hundred million dollar securities fraud class action on summary judgment (In re: Metris Sec. Litig., No. 02-CV-3677 (JMR/FLN) (D. Minn.)). I keep my head in the game til the bitter end and then some.
Committed. Ethical. Experienced. Successful. Call 612-234-7349 to speak to a real live Minnesota litigator for a free brief consultation if you think you might have a legal claim or if someone has brought or threatens to bring a claim against you. If I cannot help you, there’s a very good chance I know who can.