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.]
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.