Not so portable justice

In Long Island federal court last week, I lost hard, I lost bad, and I lost big.

Did I lose fair? If you’ve got the stomach for it, read this and decide. Here’s the problem, and why conservatives should care: If you read my analysis at LIKELIHOOD OF CONFUSION you’ll see that something is terribly wrong. The courts have not only become a way to prevent competition, via abuse of laws such as trademark and copyright that were once meant to stimulate free enterprise. They have also made it impossible to do business in the modern world, because just this summer a judge in Phoenix said that it was perfectly legal to do what this judge — speaking through the jury she instructed — said was three torts giving rise to millions of dollars of liability.

Now, the fact is that the preposterous damages awarded to our adversary by this jury, even if reduced by the judge, will never be collected, as a practical matter, because the defendants (my clients) do not have assets amenable to collection. (They would not have taken this risk otherwise.) And by my efforts in this cause I kept this client in business from 2004 — when it received its first blustering, threatening cease and desist letter — until today. Good … but not good enough.

Let me put it yet another way: I don’t take a case this far if I don’t believe it is meritorious on the law and the facts. I am not in the business of fooling juries, or trying to. You don’t have to believe my sincerity in making that statement; nor do you have to trust my judgment or intellect, or my courtroom skills. But without trusting me or adopting my view on any of those things, I am explaining the source of my passion about how wrong this outcome is, and why this issue and this verdict are not going to go away from this page and the others over which I have some influence.

Adapted from a post on Likelihood of Success.

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