Long before becoming our 16th President and helping end the Civil War, Abraham Lincoln was a well-respected litigator. He was known for being “aggressive and tenacious” in the courtroom.[1] Lincoln was also an inventor, a patent holder, and a strong proponent for our patent system.[2] Interestingly, Lincoln practiced in federal district courts and reportedly handled up to 22 patent cases in his career.[3]
Lincoln’s Advice
Although an accomplished, aggressive litigator, Lincoln advocated strongly that lawyers should persuade clients and colleagues to compromise and trust that “There will still be business enough”. One of my favorite quotes from Lincoln is:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”[4]
Lincoln goes on to fault those who “stir up” litigation:
“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it. “[5]
Lincoln was not crazy. Remarkably, he clearly understood the business side of lawyering that can drive up the complexities and costs of litigation unnecessarily even today.
How To Follow Lincoln’s Advice in Intellectual Property Litigation
In the antebellum system in which Lincoln practiced, lawyers were encouraged to use their offices as chancery courts, frequently mediating and often settling disputes.[6] Today, the business of law has evolved significantly since Lincoln’s time, especially for counsel involved in intellectual property litigation. Nevertheless, Lincoln’s advice can be followed by 1) understanding the pressures and timing that can affect outside counsel’s decision-making, 2) keeping the complexities of IP litigation in perspective, and 3) asking for help if needed.
1. Understand What Can Affect Counsel’s Decision-Making.
For many lawyers, the ends of their law firms’ fiscal years will approach during the holiday season. Substantial efforts will be made concerning the numbers of hours billed and of dollars collected and achieving reasonable realization percentages. Thereafter, much number crunching, committee meetings, and internal firm discussions will take place as important decisions are made concerning how to split the law firm “pie”.[7]
For some lawyers, the pressures associated with the “pie” will be strongly felt well into the New Year. These financial, administrative and emotional pressures are real. Lawyers are reportedly 3.6 times more likely to suffer from depression than non-lawyers.[8] Law Professor Brian Clarke explains the “dark side” of practicing law as follows:
“I tell [law students] about the challenges of practicing law including … the inherent competitiveness of the adversarial system; the joys of dealing with unreasonable and unprofessional opposing counsel; the fact that someone must lose in litigation; … the nature of the billable hour; the difficulty of billing 1,900-plus hours a year; the unrealistic expectations many of them may have about being lawyers; the “keeping up with the Joneses” (and corresponding financial stress) that is common in the lifestyles of lawyers; … the lack of boundaries and the need to be “on the job” 24/7/365 (especially in a big firm); and so on.”[9]
Intellectual property litigation can be particularly difficult, like trying to handle a bear! The stakes and fees affecting clients and marketplaces are often quite high. For counsel, the business pressures can be significant as well, especially when the litigation is prolonged. Over time, counsel can come to rely on the litigation as a significant source of income yielding monthly or quarterly returns within established compensation systems. Persuading opposing counsel to let go of a good lawsuit and believe “There will still be business enough” can be incredibly challenging. Sadly, at least several billing cycles and outside influence from the Court or a mediator are often needed to change an established practice and resolve litigation.
Intellectual Property Litigation Can Be A Bear!
2. IP Litigation May Be A Bear, But It’s Not Rocket Science!
In IP litigation, due to so many seemingly complex procedural, substantive, and technological issues, an ideal environment exists for counsel bent on stirring up litigation to put money in their own pockets. Under tight court deadlines, complicated discovery production and battles, and the like, conditions exist such that the forest is frequently obscured for all the important, complicated trees immediately in view. To persuade clients or opposing counsel under such conditions that “the nominal winner is often the real loser” or that “There will still be business enough”, the seemingly complex issues in IP litigation must be simplified and put into proper perspective.
Compare, for example, some of the truly complex accomplishments rocket scientists have recently accomplished. Last month, the European Space Agency (ESA) landed a tiny probe on a duck-shaped comet 300 million miles away! This feat took 10 years of planning and another 10 years of traveling 4 billion miles, including 3 laps around the sun using gravity to slingshot itself, before the Rosetta spacecraft arrived in August 2014 to orbit Comet 67P/C-G. While the comet was traveling at 84,000 mph and spinning, landing the probe on it was “like a flea landing on a speeding bullet”.[10] Also, just last week, NASA completed an important test flight of its replacement for the space shuttle, the Orion spacecraft. Orion traveled 15 times higher than the International Space Station (farther than any human-rated spacecraft has gone in 40 years) in preparation for human deep space travel … one day.
A photo of the Pathfinder Space Shuttle at the U.S. Space & Rocket Center in Huntsville, Alabama taken in November 2014 during our visit with Cub Scout Pack 236.
Unlike the Rosetta and Orion missions (or even the older space shuttle missions), IP litigation is really not rocket science. Perceived complexities should not be permitted to stir up IP litigation unnecessarily. Yet, in the heat of battle, this is forgotten or not easily conveyed to opposing counsel, opponents and clients. Sometimes, participants need help keeping issues at hand in reasonable perspective.
3. Asking for Help and Selecting an Effective IP Mediator.
If you are involved in IP litigation or know counsel stirring up IP litigation, consider asking for help in getting the case to mediation before an effective IP mediator. Here are some tips:
Getting To Mediation
Generally, there are 3 ways to get a case to mediation:
• An agreement of counsel and parties to mediate,
• A court order directing the parties to mediate, and
• Enforcement of a contract clause mandating that the parties mediate their dispute.[11]
(Having litigated IP cases since the early 1990’s, I’ve taken some additional unique routes to get unusual cases into mediation. If your unusual case doesn’t fit the above, contact me to discuss different routes available.)
Selecting an Effective Mediator
To select an effective IP mediator, avoid those you think might simply “carry water” back and forth between opposing sides. You should question:
• Will the mediator understand realistic boundaries of the asserted intellectual property rights and values (damages) as well as litigation procedures and tactics and timing, and law firm compensation systems that may affect counsel’s decision-making?
• Will the mediator be able to communicate persuasively to your client, the opposing party(ies), and/or opposing counsel? and
• Will the mediator be able to keep one or more parties or counsel from derailing the mediation (as clearly some will want to continue stirring up the litigation and may seek to sabotage efforts to resolve or narrow disputed issues?
Abraham Lincoln’s years of litigating in federal and state courts most certainly shaped his ability to end conflicts having the depth and magnitude of the Civil War. Perhaps his advice is worth considering, and if followed, might just bring a little more peace to intellectual property litigation.
Wishing you peace this holiday season!
Cheers,
Mike
Powell IP Law, LLC
– A 2015 Tier 1 Best Law Firm![12]
Here’s another photograph of some of the many rockets on display at the U.S. Space & Rocket Center in Huntsville, Alabama
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