Settling with Civility in Patent Litigation

By Amy Towell
March 14, 2010

Docket Report subscribers and visitors to our website know that Docket Navigator tracks every patent case in every federal district court every day, and reports every significant event. Every day our team reads an average of 500 docket sheets, selects events that are worthy of reporting, and summarizes those events for our readers. As you might imagine, most of the court documents we review are pretty cut and dry, reflecting the serious business of dispute resolution. But occasionally we come across a bit of commentary that stands out from the rest.

In the case of Henryk Oleksy v. General Electric Company, et al (ILND 1-06-cv-01245), a settlement conference occurred recently; quite a normal activity in patent litigation cases. But something about this particular entry caught our eye. Patent litigators were complimented for being civil by the district court. This is not something you typically see, but when there are these types of “feel good” moments they are worthy of being noted.

The order dealt with the behavior of counsel at a settlement conference. Now, obviously we’ve seen many orders addressing the behavior of attorneys. They usually include words like “compel”, “protective order”, “sanctions”, and sometimes even “contempt.” This order however, was completely absent of the aforementioned words, and in their stead were words like “devotion,” “cooperation,” “civility,” “respect,” and “fidelity.” From the order:

There is one further point that deserves mention. Ours is an adversarial system, and the adversary system is deemed fundamental to Anglo-American jurisprudence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993); United States v. O’Neill, 437 F.3d 654, 660 (7th Cir. 2006). Consistent with the role of an advocate in that system, is a partisan presentation. Philips Medical Systems Intern. B.V. v. Bruetman, 8 F.3d 600, 606 (7th Cir. 1993). Indeed, “a partisan scrutiny of the record and assessment of potential issues, goes to the irreducible core of the lawyer’s obligation to a litigant in an adversary system….” Smith v. Robbins, 528 U.S. 259, 293 (2000) (Souter, J., dissenting). See Sommerfield v. City of Chicago, 254 F.R.D. 317 (N.D.Ill.2008). But, the single minded devotion to a client’s interests which “follows from the nature of our adversarial system of justice,” Penson v. Ohio, 488 U.S. 75, 84 (1988) is not inconsistent with cooperation between lawyers, who manifest civility towards and respect for one another. In fact, years ago, the Report of the Seventh Circuit’s Committee on Civility chaired by then Chief Judge Aspen made clear that lawyers on opposite sides of the case could and should function cooperatively and civilly, and that in the end, justice was best served when they did so. The conference that I had this morning with counsel for the plaintiff and defendant demonstrated that the goals and standards enunciated in the Aspen Committee’s Report were capable of achievement without counsel abdicating in the slightest degree fidelity to their respective clients’ best interests. Counsel are to be complimented on the degree of professionalism they exhibited during the conference today.

Oleksy v. General Electric Company, et al., 1-06-cv-01245 (ILND February 26, 2010) (Cole, M.J.).

To whom did Magistrate Judge Cole refer? The following attorneys attended the settlement conference:

  • Brad Lyerla of Marshall, Gerstein & Borun for the defendant, General Electric
  • Tim Haller of Niro, Scavone, Haller & Niro for the plaintiff, Henryk Oleksy
  • Chris Laney of Niro, Scavone, Haller & Niro for the plaintiff, Henryk Oleksy

“Civility costs nothing and buys everything.”
~ Mary Worley Montagu

The Author

Amy Towell

Amy Towell

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