Jul 24 2017

SCOTUS Ruling on “Slants” Trademark Leads to More Offensive Filings

Back on June 19, a unanimous Supreme Court struck down a law prohibiting the registering of “disparaging” trademarks, in a case dealing with an Asian-American band called “The Slants.” The ruling also ended the appeal filed by the Washington Redskins which had been denied a trademark for their name under the same provision. The Court struck down the law as violating the free speech rights of the applicants. It also ruled that by providing the registration for the trademark, the US government was not condoning or sponsoring the mark.

Coming to a store near you?

The decision has opened the floodgates for other filers to seek trademark protection for racially offensive trademarks. For example, on the very day the Slants ruling came out Marlon Andrews of Washington DC has field for a trademark to sell T-Shirts and other articles of clothing with the phrase “Nigger Please” emblazoned on them. Other applications that would have been previously denied under the regulation include an application for clothing with the Nazi swastika on them. Reuters reports that nine applications for use of “Nigga” have been filed mostly by a company called “Snowflake Enterprises” which plans on using the word on alcoholic and non-alcoholic beverages as well as on all sorts of clothing. Trademarks of course, often lead to litigation, so it won’t be long until we see “Nigger Please, Inc. v. Nigga Please, LTD” or something of the sort before that Trademark Appeals Board.

The one good thing to come out of this ruling is that it may perhaps educate folks that hate speech is still protected speech. Too often I hear TV pundits talking about the right to restrict speech on college campuses because the banned speech is “hate speech.” Well with the Supreme Court of the United States saying that the USPTO must allow companies to trademark racial slurs on First Amendment grounds, clearly then an actual speaker offering racist lectures on college campuses is also protected under the First Amendment provided he/she is not directly inciting violence (a valid First Amendment exception). Hopefully the marketplace will straighten this out and these products won’t last too long on the shelves.

Jul 19 2017

Golf is a Lot Like Trying Cases

Out on Long Island, where I have a law office and where I live, lawyering and golfing go hand in hand. Its expected that if y practice law out here, you golf. Personally, I hate golf and only do so rarely and only at Golf Outings. I’m terrible at it since I only took the game up in my 40s and have not the time (or desire) to practice as much as I would need to in order to get any good at it. The rare times I do go out on the course with clients, I make them agree beforehand that they will not equate my golf skills with my lawyering ability. But in playing the game I realize that there are lots of similarities between golfing and trying cases. Here’s my top 5:

#5. What you wear matters Golfers can get away with wearing stuff you can’t wear anywhere else. Garish colors, odd combinations, etc. But being cool and comfortable is top priority. For trial lawyers, dress is also important because jurors (and judges) will sometimes form impressions of you from their initial view of your appearance. So while you don;t want to go too far and look like a peacock, you want to look “put together.” Sometimes dressing down or way up may be right to send a message to the jurors about your position and case, but the general target you are going for is neutral – you want jurors to think you’re well dressed, neat and in control.

#4. Where you do it matters Golfers are always trading stories about beautiful courses they have played and trial lawyers are no different. We love a nice courtroom that sends a message of gravitas and dignity to jurors and witnesses. But more importantly, you have to know your jurisdiction and audience. What are the judges like? What types of folks make up the jury pool? What are the issues going on in the county or municipality? And just like playing the same course over and over again helps your game, being a regular in a courtroom is a tremendous advantage. Unless of course you’re obnoxious.

#3. Remember its a long game You’re going to have good shots, good holes, and your share of bad shots and horrible rounds. Same with a trial. Chances are if all the evidence was completely in someone’s favor, you wouldn’t be going to trial. Trials generally occur when both sides see a path to winning based on the evidence or the law. So realize that you’re going to take your hits. What matters is that you are prepared for it and that you have prepared the jury for it in jury selection.

#2. Practice, Practice, Practice You cannot get good at golf without lots of practice. It takes very little to make a golf shot go very wrong. You need to hit the driving range, get lessons, and play round after round of horrible golf to get to the point where the awkward cumbersome motion that is a golf swing looks and feels natural. So it is with trials. Preparation and practice are the keys to success as a litigator. I’ve been doing it for over 30 years, and I still practice my opening and summation out loud several times before the start of every trial to see how it sounds, to feel if i am making a logical connection with the evidence and yes, to make it look like I am speaking off the top of my head when in fact, every word – usually every pause – is thought out and has a reason for its placement and inclusion.

#1. Getting good requires public humiliation Unfortunately, there is no way to learn golf or trial law without failing in public. Neither activity are for folks who are shy about “putting it out there.” That’s one of my favorite things about trial law. The competitiveness and the isolation of it. When you flop, its on you and no one else. There’s no masking your weaknesses and flaws. Your skills are on display and there ain’t no place to hide. Each time you do it, you get more comfortable until you develop your own sense of style as a trial lawyer. just like a golfer needs know what his weaknesses are and adjust his game accordingly, so too must the trial lawyer know what his Achilles’ Heel is and deal with it. For young lawyers out there, I wish I could tell you that there was a better way to learn how to try a case but there isn’t. You can reduce the risk of this by reading my Top Ten Tips For Young Lawyers but you are going to get yelled at by some judge, you are going to go home one night feeling horribly about all the questions you forgot to ask or for freezing like a deer in headlights before the jury, but its all part of the process.


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May 26 2017

Recent Philly Exoneration Case Reads Like Textbook on Wrongful Conviction

Shaurn Thomas’ conviction for murder was overturned this week after he served 24 years in jail after Philadelphia prosecutors asked a court to vacate the conviction in the interests of justice. as I was reading about the case in the article in today’s NY Times I was struck by how the case mirrors so many of NY’s recent exonerations, including many that I have worked on in the last twelve years or so and many that have been overturned out of Chicago by Northwestern’s fantastic Center on Wrongful Convictions. The similarities reveal that all major cities should be insisting that their local prosecutors open and properly staff conviction review units as it is highly unlikely that this scourge is confined to NY, Chicago and Philly.

Young Defendants
Mr. Thomas was 16 years old when he was picked up for the murder of Domingo Martinez, who was shot while taking $25,000 to a check-cashing store he owned. Too many cases of wronglfu conviciton
ineffective counsel
I get nasty looks when I speak at bar groups about how ineffective representation by counsel plays a huge role in wrongful conviction but its a fact. As much as we like to blame nefarious prosecutors (and there are those of course in plenty) many exonerees would have never been convicted in the first place if they had competent counsel. In one of my recent exonerations, the case of David McCallum, our re-investigation revealed a previously unknown fact: that his trial defense attorney Peter Mirto (now dead and disbarred for subsequent misconduct unrelated to his horrible job at the McCallum trial) started every morning of hearings and trial with a tall glass of vodka on ice. His 18-b records which we also obtained, established that he tried this murder case having never visited his client in Rikers’ Island and having never visited the crime scene. Part of Mr. Thomas’ exoneration submission was that his lawyer never established tat Mr. Thomas was with his mother in juvenile court on an appearance ticket at the time of the murder. A recent, excellent documentary Gideon’s Army highlights how the under-funding of indigent defense results in numerous, daily injustices.

False confessions
DNA has taught us that nearly one-third of all DNA exonerations have occurred in cases where the defendant has falsely confessed. In the famous case of Marty Tankleff the 17-year-old falsely confessed to murdering his parents, demonstrating the immense power and ability of the police to extract confessions from innocent people. So it should be no surprise that in Mr. Thomas’ case one of his young co-defendants also falsely confessed to the crime and put Mr. Thomas at the scene.

Crack craze
No, I’m not referring to crime committed by folks high on crack. I’m referring to the plethora of wrongful convictions that occurred in the 80s and 90s during the crack epidemic when, courts, judges, police, prosecutors and jurors were willing to put aside or discount people’s rights in order to try and salvage their community from the violence brought on by crack and the business of crack. This phenomenon is succinctly summarized by Mr. Thomas’ current lawyer, Jim Figorski, in the NY Times’ article who was a Philly cop for 25 years before becoming a lawyer:
“I think there was a lot of pressure to solve these homicides.” Yes, and the ultimate victims of those pressures . . . . ?

Continuing Role of the District Attorney
The Philly DA’s office formed a Conviction Review Unit to look at old cases and they collaborated with Mr. Thomas’ lawyers on this case. That collaboration is key and was started with the CRU begun by the late Ken Thompson in the Brooklyn DA’s Office, which remains a model to be emulated. Their investigators re-interviewed witnesses who recanted their trial testimony that Mr. Thomas was there which led to the vacatur of the conviction. But here’s the thing. Despite all of that, the DA’s Office is till considering whether to re-try the case so the Sword of Damocles is still over Mr. Thomas’ head. That’s the same as my experience with the last two conviction vacaturs that I was a part of: Tasker Spruill and Calvin Buari The DAs in both those cases are “considering whether to re-try the case,” despite a judge in Mr. Spruill’s case finding gross prosecutorial misconduct and in Mr. Buari’s case finding that our newly discovered evidence of Mr. Buari’s innocence was credible and would likely have led to as different verdict had his trial jury heard it. Both of these re-trials are near impossibilities in light of the circumstances of the case, but it’s just too hard for these prosecutors to admit that their predecessors (many of whom are in still in the office or just recently retired) got it wrong.

Lost evidence
In April of this year, Steven Odiase had his murder conviction overturned after it was discovered in the case file that a NYPD detective’s form summarizing the canvass of the murder scene—known as a “DD5”— had not been given to the defense attorneys who represented Odiase at trial. Well, that’s not entirely accurate – it had been given to his lawyer during trial but the DD5 that had earlier been handed over had been redacted so that a witness’s description of the shooter that did not match Odiase was missing. I hate when that happens. In Mr. Thomas’ case, an investigative file that had been sought after by Mr. Thomas’ defense lawyers was suddenly found in a hallway at police headquarters. In the file were witness statements that contradicted the accounts that incriminated Mr. Thomas. The NY Times’ article states: “How the file got lost and was finally found was not clear. A [police] department spokesman . . .said no one was immediately available to address those questions.” In Mr. Buari’s case, the crime scene photos and 3 out of 4 of the DA’s files were purportedly and inexplicably lost several years ago, at least according to a response to a Freedom of Information law request. At the start of our hearing, it was revealed by court staff that it appeared that “someone” had rifled through the official court file and left it in disarray and nearly empty.

Mr. Thomas has maintained his innocence all along – as have the individuals in each of the cases I have been involved with. Mr. Thomas filed appeals, motions, wrote letters, asked for help from the Innocence Project, and then pursued the Conviction Review Unit. His lawyers, working with the IP in Philly, have been pursuing his case for 8 years. It can be assumed that there were disappointments, dead-ends, lost witnesses, and fruitless efforts all along the way. But if there is one truly unifying factor in all of these cases, it is the steady persistence and resiliency of the wrongfully convicted to continue their pursuit of justice.

The pattern tells us that there are solutions at hand to reduce the likelihood of this ever happening again, or at least reduce the number of times it happens. More open and timely discovery; proper funding of indigent defense; training of police and prosecutors; recording of interrogations from the beginning not just after the purported confession was obtained and then just record it on video afterward; and finally, some accountability when law enforcement is caught gaming the system, perpetrating a fraud or withholding exculpatory evidence. Hopefully, we will never see a crime wave the likes of the crack epidemic, but as we begin to all seem ready to give up many of our Constitutional protections in the name of security in the war on terrorism, let’s all remember that the last time we put those protections aside, we ended up with mass incarceration and innocent people put away for a majority of their lives.

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May 22 2017

SCOTUS Ends Forum Shopping in Patent Cases

Well the docket of the Eastern Texas Federal District Court is going to get much lighter in the coming months and years. In a unanimous 8-0 decision, in a case titled TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court held that a person or entity claiming patent infringement must bring the suit in the State where the defendant company actually “resides.” In 1957, the Supreme Court decided, in Fourco Glass Co. v. Transmirra Products Corp., that “resides” meant the State of the company’s incorporation. But since then, and beginning specifically in 1990, the Federal Circuit, the mid-level appeals court that hears all patent-based appeals regardless of where they are filed, has ruled that a patent defendant can be sued anywhere it has “sales.” So for national and global brands that means practically any district in the country. This runs counter to the patent venue statute, 28 U.S.C. § 1400(b), which provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

Troll home no more

Patent plaintiff’s lawyer’s don’t choose any district; more than any other, they choose East Texas. Normally, cases in the rural East Texas court take less time to get to trial than in other districts. But East Texas has other qualities that have made it perennially attractive to patent-plaintiffs. Defendants are very unlikely to win a summary judgment motion, as judges in the district are much more likely to give the case to a jury. That dramatically raises the cost, and risk, for defendants which in turn raises the likelihood of a settlement. Given a choice between a $200,000 settlement and a $2.8 million trial – which is the mean cost to a defendant of litigating patent cases in Texas involving between $1 million and $25 million in damages, according the American Intellectual Property Law Association – most defendants choose to fold early and cut their losses. East Texas judges also move trials quickly. Trials are often over within a week which hurts larger defendants who generally like to take their time and mount long complicated defenses. In addition, East Texas juries seem more inclined to large verdicts and love a “little guy versus Goliath” story. Patent plaintiffs in East Texas win 88% of the time compared to 68% in all other districts.

That has lead to a second East Texas phenomenon: patent-holding companies that “reside” in East Texas. Essentially shell companies, they do little more than purchase patents with the purpose of squeezing quick settlements out of major technology companies whose technologies may overlap with the patented feature. Many of those companies are “headquartered” in small offices in the building next door to the federal courthouse in Marshall, Texas; or they’re in the Energy Center in nearby Tyler, Texas. So now, “David” can be portrayed as a local East Texas company fighting with Global Goliath. How you like them odds, cowboys?

Patent trials in East Texas have become commonplace as the thousands of cases filed make their way through the judicial system. According to Wikipedia, in 2016, 1,647 cases (or 36.4%) of the nation’s patent cases were filed in the Eastern Texas District, which more than the total number of lawsuits filed in the District of Delaware (455 cases or 10.1%), Central District of California (290 cases or 6.4%), Northern District of Illinois (247 cases or 5.5%) and Northern District of California (188 cases or 4.2%) combined. That’s ridiculous especially when you consider how many companies are incorporated in Delaware and California.

Justice Thomas, writing for the Court, ruled that the Federal Circuit was wrong in using the place where sales occurred rather than the place of incorporation as the proper venue. This decision puts an end to the forum-shopping and brings patent litigation back to where the statutes put venue – where the defendant company is incorporated. It will be interesting to see what effect this has on patent trolls and on the East Texas docket. Its day in the sun as the haven for patent plaintiffs has come to an end. What will they do with all the free time I have to wonder?

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