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| FL Judge Sanctions Motorola Lawyers $22.9 Million - "You Can't Cheat and Get Away With It" |
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Wednesday, April 25 2007 @ 01:18 PM EDT
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There's a news story today that I thought you'd enjoy hearing about. It's not about SCO, but it is about a topic dear to your hearts. Why don't the courts sanction misbehavior on the part of lawyers? It's a question I get a lot in email, and I've seen it frequently in comments recently too. I've told you before that if that happens, it's usually at the very end.
Here's an example. In a $10 billion trade secrets case SPS Technologies Corp. brought against Motorola, the judge has just fined the Motorola legal team nearly $23 million in attorneys' fees and costs for flouting a court order and misconduct during the trial -- like letting its experts read trial transcripts before they testified. Motorola had argued that they'd made a harmless mistake, like running a red light. The judge disagreed. As SPS's attorney had argued, they didn't just run a light. They ran a light and "hit somebody". Motorola's violation "goes right to the heart of the civil justice system and it certainly has to be addressed," Circuit Judge Leroy Moe is reported to have said.
Law.com's coverage includes the detail that the judge was shocked by what happened: But Moe did not address the plaintiff's request for a $100 million sanction against the Schaumburg, Ill.-based electronics giant, which was sought on the grounds that two Motorola witnesses violated Moe's witness sequestration order and read witness testimony prior to testifying.
The plaintiffs attorney team, led by Stuart, Fla., litigator Willie Gary, said it would ask the judge to clarify his ruling from the bench late Thursday afternoon.
Moe explained that the violation of his sequestration order went to the heart of the civil justice system, because the experts' testimony was crucial to the outcome of the case. "What happened was a new experience for me and I was shocked," he said when he ruled from the bench.
The case ended in a mistrial, because of the misconduct, which means they now have to do it all over again, only this time with the sanctions on the record. Obviously your case may depend heavily on what the experts say. In fact, cases often come down to dueling experts, so that is why it mattered so much. There was a discussion about how much Motorola should be sanctioned: When Motorola attorney Bruce Zimet of Fort Lauderdale, Fla., argued that Gary had only documented 175 billable hours since it was discovered during trial that two Motorola witnesses had violated Moe's witness sequestration order, the judge cut him off.
"I'm not changing anything from my ruling from January," Moe said. In a Jan. 12 ruling, Moe found "Motorola's multiple violations of the sequestration rule and this court's orders were intentional, deliberate, blunt, willful and contumacious." Tell it like it is, Judge Moe. Tell it like it is.
Motorola may appeal the sanction, of course, and it's being reported that it will. And the matter of further sanctions is still pending. So. Does that satisfy your sense of justice a little bit, your faith in the legal system? Of course, we're total outsiders to the case, and I can't speak to the merits, but I just wanted you to know that the courts have it within their power to significantly punish what it views as bad behavior. Lawyers are not above the law. It's just that the law is slower than you thought.
To tell you the truth, this reassures me too. It also makes me wonder if the BS&F strategy of appealing and objecting and asking for reconsideration of every ruling recently against them that pivots on SCO's disobeying the court's order to put all the items of allegedly misused materials on the table by the December 2005 deadline is perhaps some mighty fast dancing to try to avoid sanctions. I don't know and I'm only supposing, but it's the first theory that makes any sense to me in that it explains behavior I otherwise can't figure out. Of course, it's a gambler's strategy, since the objections themselves can be viewed as annoying, at least, and inappropriate if not well-founded in the law and the facts. IBM, after all, has to spend resources to respond.
$23 million is a lot of money, and BS&F are already working without any further payments for their time, unless they... ha ha ... win. They definitely want to avoid something like this happening to them. $23,000 -- who knows? But $23 million is a significant sanction, and clearly the judge intended to send a message. As Gary is quoted as saying, "I feel the judge sent a message to corporate America and to Motorola that you can't cheat and get away with it," Gary said after the ruling.
I would be remiss if I didn't include the reaction from the Motorola side, as reported by Law.com: New York attorney Faith Gay, who indicated she would appeal, called the judge's bench ruling "a sweeping rejection of Willie Gary's case." Heh heh. What can I say? One might hope for such a sweeping "rejection" of IBM's recent opposition to SCO's objections to the court's order to confine its case to what it did put on the table by the deadline. Litigators are a breed to themselves. They never quit. Which is why courts have rules, by the way. And sanctions. I can't resist pointing out that one of the reports in the media says that Gary pounded on the table in his summation. Here's the press release the winning lawyer, Willie Gary's office, put out. It was a ruling from the bench, and so there's no ruling on paper yet to show you, so this is the next best thing. [ Update: I see some of you are wondering why witness sequestration matters in the first place. Here's an article that explains it. But logic alone will help you. You want to avoid witness collusion, for starters. If two witnesses each separately testify to the same thing, they corroborate each other. But it's not as forceful if they got together the night before and agreed on what to say. So that's the general idea.]
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In what can only be described as a major victory for famed trial attorney Willie Gary and his legal team, Judge Leroy H. Moe has fined Motorola $23 million in attorney's fees and costs due to Motorola's egregious misconduct during trial.
The $23 million ruling was handed down after Judge Moe stated during a previous hearing that, "sanctions are in order against Motorola" for the intentional, deliberate, blatant, willful and contumacious violation of a direct order from the Court.
The judge imposed the $23 million sanction in connection with the trial that began in early October 2006 and lasted nearly two months. The $10-30 billion dollar lawsuit that Gary and his team tried on behalf of his client, SPS Technologies, Inc., ended with a mistrial.
"The ruling handed down by Judge Moe has sent an important message to Motorola and its attorneys," commented Willie Gary, lead counsel for SPS. "Over the last five years we have spent millions of dollars in attorney's fees and costs that were wasted because of Motorola's cheating and violating one Court order after another" continued Gary. "The $23 million dollars says to Motorola and its lawyers that dishonesty and willful misconduct during a trial will not be tolerated. They are not above the law."
Gary intends to ask the Court to rule on the $100 million request for restitution for SPS, which he feels was inadvertently not addressed during yesterday's hearing.
Gary and his legal team allege that Motorola stole SPS' idea for computer- based tracking technology, which led to Motorola's present vehicle tracking system, licensed to major auto industries and related systems. A new trial date has not been set but Gary will ask for $10 to 30 billion in damages.
Gary and his legal team are no strangers to seeking justice. Gary is perhaps best known as a trial lawyer for his half billion-dollar verdict against Canadian corporate giant, the Loewen Group in 1995. Gary and his team also won a $240 million verdict against Walt Disney Corporation for their clients who alleged Disney stole their idea for a sports theme park. Additionally, Gary was awarded $18.28 million against the media conglomerate Gannett Company for the false portrayal of their clients in a series of newspaper articles. In 2001, a jury awarded Gary a $139.6 verdict for the Maris Distributing Company against Anheuser-Busch. Gary next high profile trial will likely be against ESPN on behalf of his client, famed boxing promoter Don King. Gary has sued ESPN's for over 2.5 billion dollars for defaming Don King and placing him in a false light.
Website: http://www.williegary.com/
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| Authored by: thombone on Wednesday, April 25 2007 @ 01:31 PM EDT |
| Thanks [ Reply to This | # ]
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| Authored by: thombone on Wednesday, April 25 2007 @ 01:32 PM EDT |
| Thanks again :) [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 01:44 PM EDT |
Gary is famous for taking on the biggist corporation and winning. Motorola
should have negociated a settlement before the trial started.[ Reply to This | # ]
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| Authored by: walth on Wednesday, April 25 2007 @ 01:53 PM EDT |
Gary doesn't 'seek justice' he seeks MONEY.
From the story, he is wanting $11,000 PER HOUR for his time in a case he DIDN'T
win.
Wonder what BSF gets per hour...[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 02:06 PM EDT |
Such fines are, to a large law firm, simply a cost of doing business. They may
even be tax deductible. Unless the judge puts the offending lawyers into the
big house to meet some new interesting roommates with some pent-up resentment to
work out against the legal profession, such a sanction isn't going to change any
behavior. Or even hurt their reputation among potential future clients, really.[ Reply to This | # ]
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| Authored by: PolR on Wednesday, April 25 2007 @ 02:11 PM EDT |
In a $10 billion trade secrets case SPS Technologies Corp.
brought against Motorola, the judge has just fined the Motorola legal team
nearly $23 million in attorneys' fees and costs for flouting a court order
and misconduct during the trial -- like letting its experts read trial
transcripts before they testified.
$23 million is 0.23% of
$10 billion. I can't speak for Motorola or their lawyers, but this appears
to me as betting 0.23% of the value of the case on a practice that offers a fair
chance of winning 100% while offering also a fair chance of not being caught and
not paying the 0.23%. They happened to have lost their gamble but they could
have won and nobody would have known.
May be I am cynical, but there are
people on this planet that don't have a conscience and will see these matters as
a pure business decision. Do you think the lawyers would have done such a thing
without confidence that Motorola would foot the bill if things go wrong?
I
wonder what kind of bite this kind of sanctions would have on SCO. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 02:15 PM EDT |
I had to look that one up as I've never run accross that word
before:
stubbornly disobedient, rebellious, wilfully obstinate; "a
contumaceous witness is subject to punishment"
Umm..... ouchies, I'll bet
that's a word most lawyers hope to never have a Judge apply to them.
RAS
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| Authored by: Matt C on Wednesday, April 25 2007 @ 02:16 PM EDT |
"a $139.6 verdict for the Maris Distributing Company against
Anheuser-Busch"
That's not a very big verdict compared to the others[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 02:16 PM EDT |
Can you imagine a mistrial in SCO vs. World?
The whole thing will have to start over.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 02:45 PM EDT |
Motorola's annual sales are around $40 billion. I don't know what proportion of
their business comes from devices using the "secret" tracking
technology, but it can't be a large proportion.
This fits right in with $2.5 billion for defaming Don King. King has made tens
of millions in a year, but how do you get to billions? How do you defame Don
King, anyway?
I'm having a little trouble taking anything this Gary fellow says at face
value. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 02:47 PM EDT |
| ....don't play golf with the right judge. [ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Wednesday, April 25 2007 @ 03:16 PM EDT |
I can understand why you might sequester fact a witness. I don't understand why
you would want to sequester expert witness. Perhaps someone could enlighten me.
In a Federal Case the expert would have submitted reports which would be
available to both sides. In state court reports might not be required, so the
only place an expert could evaluate the opposing experts opinion would be
through their testimony.
The few times I have testified as an expert I was requested to sit through the
opposing experts testimony, in order to be able to respond to it.
---
Rsteinmetz - IANAL therefore my opinions are illegal.
"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk
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| Authored by: drreagan on Wednesday, April 25 2007 @ 03:38 PM EDT |
Running a red light can be far from harmless - it can have a very fatal
consequence at times.
[ Reply to This | # ]
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| Authored by: fava on Wednesday, April 25 2007 @ 03:46 PM EDT |
I would not heap any praise on Gary and his legal team for his role in the
Loewen group, by all accounts he plays dirty.
http://slomanson.tjsl.edu/Loewen.pdf
fava[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 04:10 PM EDT |
Yes $23,000,000 does seem like a lot of money. However, it only represents
about 0.005% of their net proffits for 2006 or about 1/2 a cent a share to the
share holders.
If you really want to send a message, make it $500 million. Then watch the
shareholders take the company to task for what it does. That and hit the lawers
personally with fines of more than a few thousand dollars.[ Reply to This | # ]
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| Authored by: PTrenholme on Wednesday, April 25 2007 @ 04:25 PM EDT |
The judge imposed the $23 million sanction in connection with
the trial that began in early October 2006 and lasted nearly two months.
The $10-30 billion dollar lawsuit that Gary and his team tried on behalf of
his client, SPS Technologies, Inc., ended with a mistrial.
Of
course that refers to the trial phase, and doesn't include the time spent
preparing for the trial.
But, still, how long has SCO v. IBM been
preparing for trial? Perhaps the Judge(s) in SCO v. IBM will let it go to
trial too, and - when B of BS&F pulls out the surprise evidence
("Ladies and gentlemen of the jury, we just found this briefcase full of copied
UNIX SRVX code in Germany.") during the trial - he'll declare a mistrial too,
and impose sanctions proportionate to the damages claimed and amount spent by
IBM.
Another thought: Can the jurors forced to waste their time
sitting
in the jury box sue the sanctioned parties for punitive damages because they
rendered their required service meaningless? ---
IANAL, just a retired
statistician [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 04:50 PM EDT |
Interesting example but has tSCOg done anything similar ? - BS7f seem to be
more like refusing to want to accept rulings that go against them. Surely that
is unrelated to priming expert witnesses.
DSM[ Reply to This | # ]
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| Authored by: vb on Wednesday, April 25 2007 @ 05:21 PM EDT |
My thought is that this proves, once again, that the courts are dice game.
Every court is different.
There are tough judges. There are soft judges. In either instance, the case
outcomes of are very different from what would have occurred if the judge had
been inclined oppositely.
No two cases, or even the same case, gets equal treatment
throughout the system.[ Reply to This | # ]
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| Authored by: GLJason on Wednesday, April 25 2007 @ 05:50 PM EDT |
I was unable to locate anywhere that said the lawyers would be paying
the fine. Everything simply said that Motorola was fined. I'm not
saying it's not the case, I just couldn't find it. Can someone point me to
where it says Motorola's lawyers will have to pay, or point me to rules or laws
that say so?
That is on point for the IBM case because SCO has no money
to pay. BSF has made a lot of money off the case and they are the ones that are
coming up with this legal theory and all the motions. How will sanctions be
paid when SCO is bankrupt?
[ Reply to This | # ]
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| Authored by: caecer on Wednesday, April 25 2007 @ 05:58 PM EDT |
However, the confusing thing is that sequestration was apparently applied to
expert witnesses. The article you link in your update notes
that
This decision may have gone one step too far in a rather
basic way. Since experts are not percipient witnesses, and their opinion
normally depends on evidence provided by others, the expert in Miller should not
have been sequestered in the first place.
I have been marginally
involved (as a consultant and/or an expert witness) in several cases, and have
never come across a sequestration order for expert witnesses; indeed, it has
often been essential for my work to examine the testimony (either in depositions
or in court) of all other witnesses, fact or expert. And it is quite common for
expert witnesses to be present in court during testimony of other witnesses. [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 06:40 PM EDT |
How is this "a sweeping rejection" of Gary's case?
Because he only got $22.9 million in sanctions instead of $100 million?
Because it's a mistrial, and so he hasn't won? (But, on the other hand, he
hasn't lost, either.)
Is this just grandstanding for the press? It doesn't seem to make much sense
that way, because grandstanding needs to at least appear true, and this is such
obvious nonsense that even the below-average reader will say, "Huh?
Howzat?"
Or is it just because the Motorola attorney is bitter, because some of the money
comes out of her pocket?
MSS2[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 07:34 PM EDT |
Lady Justice is not always fair, and today it seems that there is an interest in
the legal system to make sure that lawyers and their incomes are protected
(above all else)!
I find that the issue at hand is that the wording of some software patents (when
mixed in with the effect of a business method patent, the double whammy), where
the wording is too broad, and in effect allows a party to gain a monopoly where
certainly the origins are not "unique in a data world"... hey, this
whole situation is dubuious at best-os.
Analog ideas that are business methods, when mixed with digital patents, that
never should be allowed in the first place is a crime that is being supported by
the courts.
Hopefully, the supreme court can correct this by banning software and buisness
method patents by making a strong statement against at least software patents in
their soon to be expected AT&T vs Microsoft ruling. Our last chance at
living sensible again, and letting fair competion continue to live again, is in
the hands of only the Supreme Court (Congress will not ever do the right thing,
as they can't even fix tort reform it seems).
Disney getting sued and losing over the idea of a Sports Theme park - I can't
see where this idea can be protected, as isn't that what a base ball park, or a
football stadium complete with mascots, noise makers, the marching bands, and
every other entertainment side-diversions are, as well. Entertainment, is what
it is, in the first place, how can this be given patent level or trade secret
levels of protection? Heck if Disney could lose this case then Vaudville never
would have happened, etc. I think I am going to be sick. Something needs to be
done in the US to fix the legal system.
PJ - I am sorry - but I am getting sick of the US injustice system that seems to
exist only so lawyers can get paid. Let me give you an example - an older
fellow I know of was driving down the road and another fellow ran a stop sign
and drove right into the side of the older fellow's car. The younger guy that
ran the stop sign was hurt pretty bad. So - he sued the older fellow for
millions of dollars (note that the older fellow only had about 100,000 dollars
of insurance coverage, and was stressed out over not having insurance enough so
that if he lost the case he would lose everything he owned). The older fellows
insurance company chose to defend and go to trial (the legal costs for an
insured are part of an insurance policy, but the insurance company can settle
the case without needing permission from the policy holder who is getting sued).
Guess what? The older fellow won the case, but still had to pay some money out
even as he won the case. The young fellow did not win any money BUT THE JUDGE
MADE SURE THAT the young fellows LAWYER got paid (yep the lawyer for the losing
side in the case got paid $80,000 by the judge and the money to pay the lawyer
came from the older fellow's insurance company. THAT IS NOT FAIR.
After years of stress, that he should not have endured, the older fellow was
relieved that the stress was over, and never fully understood that the other
side had received money (money was paid out for the claim). Insurance rules are
that if you have a "loss", and money is paid out due to a claim, then
your insurance price goes up, and you might have your policy cancelled as well.
Well, the older guy could not figure out why he had to pay higher insurance
prices when he was not at fault and had won the case that proved he was not at
fault. Well, due to the judge making sure that the losing lawyer got paid, and
paid well, this was in effect a loss for the winning party and so the judge, in
effect, caused this older fellow's insurance policy to increase in cost for 3
years...!
This ruling by the judge was not something that would discourage an ambulance
chasing lawyer from suing when the facts point to the fact that the injured
party is at fault and should be collecting medical bills and disability income
from his or her own insurance policy and not the other party who they happened
to run into. hey - the lawyer got paid and the judge made sure of it. That is
not justice. That is justice and lawyers taking advantage of a system.
This software patent and business patent legal climate in the US is not far away
from being "designed" for jsut for lawyers, and their own personal
incomes, at the expense of what true justice should be!
Dickens wrote about a similar problem about Justice in the Court of Chancery, in
the England of his day (in "Bleak House"). The lawyers milked it for
all it was worth, and public outrage did not happen until everyone woke up to
the problems in the courts, after Dickens wrote about it.
The US needs Tort reform, but guess what, Orin Hatch, mustered opposition amoung
fellow "plaintifs lawyers who were now Senators" in the Republican
controled Senate, and this resulted with Tort reform being scuttled in the
Judical Committee, ONLY because fellow lawyers would make less money if fairness
and reason were again to prevail.
We have a long way to go, a lawyers filled Congress has no chance of changing
things so that lawyers will be making less money, and if the Supreme Court does
not perform a major strike against software patents in AT&T vs Microsoft,
that was just heard not long ago, well we will have same-ol and more same-ol...
and the lawyers will still be getting fat. And both the citizens and
businesses will suffer.
I pray that the US Supreme Court can rule correctly on future copyright and
software patent matters so that the patent office can be relieved of even having
to decide if software ideas are even worthy of protection, maybe IP again can be
given the respect by the common man that it deserves, and maybe citizens can
elect a congress that will fix the tort problems in the US as well.
There is hope for justice - but only if certain lawyers are not allowed to
decide it's fate.
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| Authored by: Anonymous on Wednesday, April 25 2007 @ 11:39 PM EDT |
Taipei Times 4/26
Best wishes to everybody on World
Intellectual Property Day
Steve Young
Director,
American Institute in Taiwan
World Intellectual Property
Day....?!?
You gotta be kidding!! [ Reply to This | # ]
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| Authored by: Prototrm on Thursday, April 26 2007 @ 09:19 AM EDT |
No disrespect intended, but LOL!
It could be worse, I suppose. His first name *could* have been
"Larry".
---
"Find out just what any people will quietly submit to and you have found out the
exact measure of injustice and wrong which will be imposed upon them."[ Reply to This | # ]
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