(Part 1 is here.)
So. In light of the decision in the Thomas-Rasset case, which I first rounded up in part 1 of this first-ever two-part LIKELIHOOD OF CONFUSION® odyssey, now I ask: How does a jury of supposedly ordinary and sensible people becomes twelve angry persons and so profoundly abandon common sense in IP cases (even if it the whole thing looks really hilarious to some folks)? How do they allow themselves to buy into these never-never-land valuations of damages, whether statutory or otherwise?
I don’t know. But as what was a grueling week melts away, it is time to relax a little, and do what litigators love to do best: Tell “war stories.”
Now, I’ve picked juries in many kinds of cases, from wrongful termination and commercial to copyright and trademark cases. I may not have always chosen wisely, but my record is not too shabby, overall. Frankly I believe my jurors were pretty darned reasonable and intelligent people, quite to the contrary of all the cynicism, and not just because of the outcomes I’ve gotten — mostly. I never demonstrate a lack of respect to jurors such as by praising their patriotism or, more to the point, lying to them, regarding which so many of my colleagues have no such scruples. And that is because, besides the fact that I aspire to practice in an ethical manner, I do respect the jury.
This includes the one jury I truly “lost,” namely the one I had in Central Islip, New York, last January, which I discuss in greater detail below. They seemed to me, when we completed voir dire, to be a perfectly fine bunch, and maybe even a little better for my side than my adversary’s. What happened to them along the way I still don’t understand. But in the succeeding months I have had to admit that jurors’ willingness to treat other peoples’ lives with what can only be described as disdain, and other peoples’ life’s savings as Monopoly money, raises serious questions about the jury system.
Noodling about juries is certainly common, but usually focuses on areas such as personal injury and productsliability law, where big, bad corporate America is footing the bill for arbitrary impositions of an ugly form of wealth expropriation via class warfare and political expediency. In fact, a very similar thing may be happening in intellectual property law. Except that here, as a general rule, the class warfare aspect of the game is trending in favor of the Haves, which are finding trademark and copyright to be usually very decent substitutes for the laborious and expensive effort of reconsidering obsolete business models. Both trends are bad news for free enterprise and economic growth.
Now, on the one hand, I was very impressed when we spoke with the jury in Phoenix after the Designer Skin v. S & L Vitamins case. This bit of denouement is a practice that varies from court to court; some resolutely forbid this debriefing, but lawyers love them. The District of Arizona jury returned a verdict of copyright infringement for my client’s use of what were claimed to be original images of the Designer Skin tanning lotion company on my client’s “unauthorized” tanning lotion reseller website. This verdict appeared eminently reasonable to me notwithstanding my advocacy to the contrary, given the evidence and the rulings. Read More…