A little while I ago I uploaded, at J.D. Supra, the three days of trial transcripts from last year’s desert extravaganza, the Designer Skin v. S & L Vitamins trial. Which, er, technically speaking, I lost. (I had already won the 95% of it that didn’t go to the jury.) But, still. The non-technical non-losing was really wild. No, seriously.
Of course you’d have to be a litigation junkie, or something worse, to really read through it — unless, of course, you knew what was in there. Believe me, this is one fun transcript. I am not kidding.
But you won’t.
So I have done for you — in honor of the year that has passed, and all the tanning lotion that has flowed under the bridge since then, and because I am feeling extremely creative — what I had always wanted to do: I have excerpted sections of the transcript relating to one issue which, as dry as it sounds, made this trial an absolute real-time heart-stopping drama of the highest order. And I have gone through the trouble of opening up a Scribd account and installing a plugin here so I can show you this fun document right here on the blog. Because it is that wild.
That issue was, what if you haven’t subpoenaed your adversary’s principals… but one of them is in town for the trial… and you subpoena him in the hotel lobby after the first night… or maybe you didn’t, after all…
Stop laughing! You have to read it.
And do remember, as you do read it: One, this is a little piece of the trial we did well on, but what was left for the jury (the question of copyright infringement, although without damages), they returned a good, clean verdict finding liability. And, two, the other side was — believe me — living in a world, both substantively and procedurally, they did not create. Rather, they were doing their level best to prosecute claims they must have known, up to though surely not beyond the point of ethical justification, were frivolous, as part of their client’s cynical strategy of litigation by attrition. It eventually paid off, and destroyed my clients’ businesses and a large part of their lives, and didn’t do much for LIKELIHOOD OF CONFUSION®’s accounts receivables. So be it: This is the life of the law.
The rest is commentary. Are you ready? Okay, put on the a/c (full blast), and here we go.