Legal News

The Day?s Theme: Judge Slams Lawyer Over Courtroom Remarks

By Ashby Jones

Here at the Law Blog, we like it when days or weeks have themes, like Discovery Week, which, as we’re sure you all remember, took place about two years ago. Took us several days to sober up after Discovery Week, as a matter of fact.

Today — Tuesday, August 18, 2009 — has a theme all to itself: lawyers getting slapped down hard for in-the-courtroom statements. Earlier, we blogged about the Ninth Circuit reversing a major stock-options backdating conviction over a prosecutor’s alleged errant courtroom remarks. And now, here’s tale of another. The federal judge in the Microsoft/i4i patent-infringement case we wrote about last week added a $40 million fine to Microsoft’s tally because of statements made by Microsoft’s trial counsel, Weil Gotshal’s Matt Powers (pictured). Click here for the story, from the Seattle P-I’s Microsoft Blog. (Hat tip: ABA Journal.)

Now, we know of Matt Powers. He might not be the Harvey Miller of the patent bar, but he’s on a very short list of attorneys in the country to whom big tech companies routinely turn to handle their largest patent matters. In other words, Powers didn’t just fall off the silicon truck.

But Powers, according to Eastern District of Texas judge Leonard Davis, misstated the law to the jury during the i4i/Microsoft trial — a factor in his deciding to stick Microsoft with $40 million in enhanced damages. Wrote Judge Davis:

Throughout the course of trial Microsoft's trial counsel persisted in arguing that it was somehow improper for a non-practicing patent owner to sue for money damages. He further persisted in improperly trying to equate i4i's infringement case with the current national banking crisis implying that i4i was a banker seeking a "bailout." These improper arguments were made in spite of the Court's warnings. . . . Despite [an] admonition, Microsoft's trial counsel continued to misstate the law and directly appeal to the jurors' perceived prejudices. During opening statement, he stated that "we're here because the bankers decided to achieve liquidity" and that "the banker cases are the ones where you don't have a very successful product, and the bankers decide to try to get their money out another way.

Powers declined to comment. In an e-mail to the ABA Journal, he said that the law firm's response will be in its appellate brief, a filing we’re itching to see.

Full post as published by Law Blog - WSJ.com on August 18, 2009 (boomark / email).