by Lee Gesmer | Oct 19, 2006 | Courts
In the strange heat all litigation brings to bear on things, the very process of litigation fosters the most profound misunderstandings in the world. Renata Adler
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The Boston Bar Association (BBA) today issued a report entitled Report of the Boston Bar Association – Task Force on the Vanishing Jury Trial. The subtitle is “Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon.”
Lawyers may be forgetting how to try cases, but they haven’t forgotten how to write. Apart from the 37 words in the title, the full report is 38 pages long. It provides convincing evidence of the long-term trend toward a decline in jury trials (in both federal and state courts), and bemoans the fact that lawyers are experiencing this legal epiphany less often than in the past.
While I’m as “up” for a good old rollicking jury trial as the next guy or gal — with its enormous expense, unpredictability, risk of jury nullification, ignorance or disinterest, and stress on all concerned (mostly the clients) — I’m not sure that fewer jury trials is a “bad thing.” I would liken it to dentists bemoaning the lost opportunity to fill cavities. Darn that fluoride, flossing and better hygiene!
Personally, after 27 years in this “business”, I would attribute the dearth of civil trials to the following:
- Clients are far more sophisticated, and they are able to pull the plug (i.e., settle) more often. They are less dependent on their lawyers for the decision to do this. The prevalence of in-house counsel, who can advise more objectively on the issues, helps clients figure out what’s in their best interest.
- Judges are far more willing to issue summary judgment – to decide the case on the papers, without a trial.
- Lawyers are too expensive and, perforce, so are trials. Clients want to avoid that expense.
- Juries are notoriously unpredictable. Nothing new, but the news media has, I believe, made people more aware of this.
- The courts are too slow, and have priced themselves out of the market. Arbitration has become a good alternative to the jury trial – usually (note emphasis) it is faster, less expensive and more reliable in terms of a rational result. And, it eliminates the risk of a time-consuming and expensive appeal.
- Mediation resolves cases a very high percentage of the time, and parties are more sophisticated in electing to utilize it.
Oh, and the “vanishing jury trial” is not limited to the Massachusetts state courts by any means.
I tell clients from the first day a dispute arises that, no matter how angry or enthusiastic for a trial they may be, their case is likely (statistically speaking) to settle, and that they should constantly keep settlement options actively in mind. I tell them that the only reason a civil case should go to trial is if one side badly misjudges the facts or law underlying the case. If the case is close, it should settle (why take the risk of an all or nothing gamble?). If it is one-sided, it should settle, since it should be clear that one side is likely to lose.
Sadly, too many lawyers (you hear their ads on the radio and see them in the legal journals – “courtroom lawyers,” “trial lawyers”) are often as willing to take their clients to trial as generals are to commit their troops to battle.
So, the jury trial is dead, or at least moribund. Long live the jury trial!
by Lee Gesmer | Oct 19, 2006 | Copyright, DMCA/CDA
I quote from News.com on September 28th:
Cuban, co-founder of HDNet and owner of the NBA’s Dallas Mavericks, also said YouTube would eventually be “sued into oblivion” because of copyright violations.
“They are just breaking the law,” Cuban told a group of advertisers in New York. “The only reason it hasn’t been sued yet is because there is nobody with big money to sue.”
* * *
Cuban said “anyone who buys that (YouTube) is a moron” because of potential lawsuits from copyright violations.
“There is a reason they haven’t yet gone public, they haven’t sold. It’s because they are going to be toasted,” said Cuban, who has sold start-ups to Yahoo and CompuServe.
The outspoken (to put it mildly) Cuban, billionaire owner of the Dallas Mavericks and Chairman of HDTV cable network has repeated this message loudly and often, both before and after Google’s $1.6 billion purchase offer to YouTube. Many other media sources appear to have picked up the tune, and the media-giant mouthpieces have added to the volume by rattling their sabers, implying that its only a matter of time before this “mother of all lawsuits” is forthcoming.
Don’t believe a word of it. Surprisingly few observers have asked the pertinent question here: do the Supreme Court’s 1995 Grokster decision and the DMCA (the Digital Millennium Copyright Act) protect YouTube from liability for copyright-protected works posted by third parties (third parties being the law’s awkward way of saying someone other than YouTube itself)?
Grokster sets the legal standard for contributory copyright infringement, in this context a product or service (YouTube) that encourages or assists third parties to post infringing works. Based on what I’ve observed, it seems that YouTube has been well advised by some pretty savvy lawyers, and that as a result it has stayed on the safe side of the line defined by Grokster. I’ve read of no evidence suggesting that YouTube has intended its service to be used for infringing works, or that it has done anything to foster infringement. If such evidence existed, you can be sure the media companies would let us know, and they haven’t. We also can be pretty sure that Google carefully vetted YouTube for this issue, and that if it had found adverse evidence, YouTube would still be flying solo.
As to the second issue, the DMCA, this federal law provides a strict “notice and take down” procedure that requires copyright owners to give written notice of an infringing work posted by a third party to the web host, including its precise location (its URL), as part of a demand that the work be “taken down.” There is no suggestion that YouTube has not responded in a timely way to legitimate take-down requests, and in fact the press has reported that YouTube has attempted to develop technologies that can help identify copyrighted works. (If this is true it would weigh even more heavily in YouTube’s favor in evaluating YouTube’s intent for purposes of applying Grokser).
All YouTube needs to do is hire a staff capable of looking at a take-down notice and removing the work at the identified URL. Ten, fifty, maybe a hundred FTEs, perhaps working in India or another low-wage country, should be sufficient, and hence the “whack a mole” metaphor – I can for-see copyright owners being forced to constantly scan YouTube to catch their copyrighted works when they pop up over and over again (posted by different users), and repeatedly provide infringement notices to YouTube. To put it differently, and a bit crudely, every time a copyrighted work pops up the copyright owner would “whack the mole” by sending a take-down notice. Of course, the media companies could themselves hire low-wage foreign workers to scan YouTube, and issue the take-down notices, creating more third-world employment on both sides of the equation. Strange but true …
by Lee Gesmer | Oct 19, 2006 | Courts, Patents, Trademark
I’ve been meaning to post some statistics reported by Price Waterhouse Coopers at the MCLE 9th Annual Intellectual Property Conference earlier this year. PWC has done a rigorous study of patent and trademark cases in the Federal District Courts and at the Court of Appeals for the Federal Circuit (CAFC) over the last 25 years. A few highlights and trends:
- In 2005, 4% of patent cases and 1.5% of trademark cases went through trial. (Presumably the balance were resolved via settlement or summary judgment).
- Juries award more damages in patent cases than bench trials. On the other hand, bench trials are more popular in trademark cases.
- The CAFC is a tough court: only 30% of damage awards are affirmed by the CAFC.
- Patent damage awards far exceed trademark damage awards.
- Patent awards’ fastest growth has been in the computer business services and electronics components sectors.
- Reasonable royalties (rather than lost profits) has become the most frequent measure of damages awarded in patent cases. (This may reflect the fact that more plaintiffs are nonpracticing inventors (sometimes referred to as “patent trolls“).
by Lee Gesmer | Oct 13, 2006 | Miscellaneous
Tim Wu and Stuart Sierra, a Columbia Law School professor and web designer respectively, have launched Project Posner, a web site offering unheard of access to Judge Richard A. Posner‘s legal opinions, in searchable format. And yes, the creators — who are certainly not alone in this view — pronounce that “Richard Posner is probably the greatest living American jurist.”
If, however, you still find yourself wondering: why should I care?, Project Posner has you covered. Project Posner offers the following explanation for its existence:
… While Posner’s books and popular writings are easily available to the public, his opinions are difficult or expensive for the public to access, let alone search. This site, for the first time, collects almost all of his opinions in a single searchable and easily readable database.
For lawyers and those interested in law, Posner’s opinions have a particular substantive value. One thing that distinguishes the opinions is the effort to try and get at why a given law actually exists, and an effort to try and make sense of the law. That can make them more useful than most case reports.
In addition, the opinions often develop the American general and state common law. Posner is among the judges who feels free to take the rule of Erie as more suggestion than injunction.
Finally, some of the opinions are funny.
If you’re still not satisfied (or you’d like to learn more about Judge Posner), take a look at his University of Chicago Law School faculty biography, his personal site, the Becker-Posner blog (maintained jointly with Gary S. Becker, American economist and winner of the 1992 Nobel Prize) or see what Wikipedia has to say. Posner’s professional accomplishments are second to none and his writings are as diverse as they are prolific. Notwithstanding, the proof, as they say, is in the pudding. And this is why Project Posner is a gold mine where the digging is easy.
Update: all of the websites highlighted above have stopped publishing or faded into history
by Lee Gesmer | Oct 12, 2006 | Courts
We repeat this bumper sticker joke meaning no disrespect for U.S. District Court Judge Robert E. Keeton, who has retired at age 86 after 27 years on the federal bench. His retirement was effective September 8, 2006. You can find a link to the official announcement here.
Since being appointed to the bench in 1979, Judge Keeton presided over a number of significant cases, including a groundbreaking software copyright case involving Lotus 1-2-3 and the prosecution of political activist Lyndon LaRouche for conspiracy, mail fraud and tax evasion. He was also the trial judge who set aside the perjury conviction of Boston Police Officer Kenneth Conley – a decision that was upheld by the Federal Court of Appeals. Judge Keeton, a Harvard law professor, wrote extensively on various legal topics and was influential in the creation and adoption of the federal civil and criminal rules of procedure.
At age 86, Judge Keeton was the oldest member of the federal court in Massachusetts. Since 2003, he was a “senior” judge, meaning that he continued to take on cases but no longer worked on a full-time basis.
Of course, as we noted recently, some federal judges are only warming up at this age.
