Who's Driving Up The Costs of Litigation? (Or, "Maybe The Recession's Worse Than We Think!")

As contingent-fee lawyers and supposed "patent trolls" to boot, my colleagues and I are blamed for many of the ills that plague society.  It is we -- who do not get paid unless we are successful -- who file merit-less cases, prolong litigation, waste resources, and cause innocent defendants to pay their lawyers upwards of two million dollars on average to defend themselves.  It's a  wonder we sleep at night.

These thoughts brought an admittedly self-congratulatory smirk to my face as I received the recent decision of the Federal Circuit affirming the District Court's denial of fees in a case we handled that never should have gone on as long as it did.

Now in fairness, we lost the case on the merits, the District Court held the patent invalid, and we took our lumps as we knew we might when we went in.  No complaint there.

Not content with their victory, our opponents moved for fees.  Again, no complaint as it is their right to ask. 

What I do find amusing is that our opponents chose to reject our early offer of a "walk away" settlement, chose to file a hopeless appeal of the District Court's denial of fees and -- most amusingly -- traveled 3000 miles each way to deliver a futile 15 minute oral argument against an opponent who wasn't even there.  (We, being the wastrels we are, elected to waive oral argument and rest on our brief.)

So there you have it.  An hourly-based firm will happily spend thousands of dollars of its client's money to travel 3000 miles to argue against an empty chair, but it's the contingent fee guys who are driving up the costs of litigation.

Yeah, somebody really ought to do something about us.

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Comments (3) Read through and enter the discussion with the form at the end
John Whitaker - February 13, 2010 1:25 PM

I especially appreciate the irony that opposing counsel was forced to argue that an empty chair was unnecessarily increasing the costs of litigation.

Fiber - September 23, 2010 4:51 AM

Aren't attorneys fees awarded in in exceptional cases to the prevailing party? What argument did opposing counsel make that the case was exceptional?

Phil Mann - September 23, 2010 1:19 PM

They basically argued that, because we lost on summary judgment, we should have known the patent was no good, etc. If this were the standard, fees would be justified any time a patentee lost on summary judgment.

Fortunately, both the District Court and the Federal Circuit recognized that the validity issue was close and that our case was brought in good faith.

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