The conventional wisdom is that the number of lawsuits filed rises while the number of transactions fall in a down economy. When times are good, companies tend not to worry about the “small stuff,” to not account for every penny. But when times aren’t so good, every penny counts, and litigation is used much more freely. However, good times or bad, it is always wise to carefully consider the pros and cons of litigation with your legal advisor before “upping the ante,” because the world of litigation is not only entirely different than business as usual, it is also expensive and unpredictable.
There are companies that aggressively protect their intellectual property portfolio, litigating routinely, even in the best of times. However, this is an expensive business model that can only be justified when the size of the business or value of the intellectual property to be protected is significant. The decision to litigate is a business decision, that requires the same due diligence of any other important business decision.
If one embarks on the path of litigation, it must be assumed that the litigation will run its full course to trial on the merits. While trial is rarely the end game in most litigation strategies, litigated matters often take on a life of their own. Litigation discovery by itself can be expensive, but trial is typically the most substantial single expense in the entire process, by far.
Trial can also be a radically different part of the process because at trial we leave our usual comfort zones and deal with an element both unfamiliar and confounding to those with technical backgrounds–the jury. And it is the jury in whose hands our ultimate fate lies. In the end, the law is whatever the men and women of the jury say it is, subject, of course, to appellate review.
Some have said that a jury consists of twelve persons of ordinary ignorance. Particularly in complex technical or financial cases, it is virtually impossible to seat a jury with the knowledge necessary to understand the details of the case. Some have debated whether jury trials are even appropriate for such matters. Nevertheless, this is the system we have, and it is important to consider the technical details in evaluating whether to file suit or defend a case to trial. For concepts that are incapable of being understood by the average jury, a “battle of the experts” will often determine the fate of such cases.
While discovery in intellectual property suits may involve a detailed examination of the science and accounting, the presentation to the jury will necessarily be quite a different matter. It is in the courtroom where science makes way for the art of the jury trial. The art of persuasion, of being able to “read” a particular jury and develop a sense of their view of the world, is fundamental to any successful jury trial. The other art is the ability to reduce and distill complex issues to their essence; and present them so that the issues and the concepts are understood by that jury of ordinary ignorance.
When it comes time to decide whether to litigate (or, if you simply have no choice because you’ve been sued), we can help. With more than ____ jury trials to our credit, we have the jury trial experience to help you make the right choice and, if the choice is litigation, to do it right.
This blog is maintained by Carstens & Cahoon, LLP to inform readers of recent developments in intellectual property. Solely informational in nature, this blog is not intended to create an attorney-client relationship or to be used as a substitute for legal advice or opinions. For more information, please visit www.cclaw.com.
By Chris Kilgore