A letter from the North American South Asian Bar Association (NASABA) has come my way. Download Letter to Judge Folsom-ED of Texas (NASABA) (A0165235). It draws attention to a recent closing argument in a patent case in the Eastern District of Texas. Plaintiff's counsel stated:
Remember what Dr. Hausman, the Defendants’ expert told you would happen if
we disregarded intellectual property rights? That we’d end up like India and
Egypt where people don’t invent things. Instead, they go around talking about
ways they hate America and ways they want to fly airplanes into our buildings.
I understand that P. Anthony Sammi was one of the defense lawyers in the case and was at counsel table when the comments were made. No objection was made.
The NASABA letter asks the court to refer the lawyer who made the comment to the state bar and to initiate discipline against him. NASABA argues the comments violated Texas Disciplinary Rule of Conduct 5.08, forbidding discriminatory statements based on race or national origin.
I understand where NASABA is coming from, but I will leave the strictly legal analysis to people more familiar than I am with the Texas rules and with practice under them. I will instead assert a practical point: NASABA members need the court's help.
As a practical matter, a NASABA member faced with such comments made before a jury is not in a good position to object. Doing so would draw attention to the comments; it also would risk leading the jury to believe defense counsel is in court to defend people who don’t invent things and hate America rather than to defend their clients. No lawyer should be placed in such a position and no client should be forced to choose between letting improper comments pass without objection or hiring only attorneys who could object to such comments without adding fuel to the emotional fire the comments seem likely to light.
Because objections are unlikely in precisely those cases where the comments are most inflammatory--meaning, to be clear, where one of the lawyers or a witness on the other side might look like the sort of person to whom the comments apply--the court needs to send a message that it won't let this happen again. Perhaps the lawyer in this case did not think through the dilemma his comments created for defense counsel and did not intend to put counsel in a bind, but future lawyers might take a more tactical approach to such comments. I don't think it's in anyone's interest to let this sort of thing be repeated, least of all the court's.
I don't know what form the message should take; a word to the wise may be sufficient, if it gets around. I expect the judges in the Eastern District have a variety of effective means at their disposal and a good sense of how to use them. I hope they do.
DM
we disregarded intellectual property rights? That we’d end up like India and
Egypt where people don’t invent things. Instead, they go around talking about
ways they hate America and ways they want to fly airplanes into our buildings.
I understand that P. Anthony Sammi was one of the defense lawyers in the case and was at counsel table when the comments were made. No objection was made.
The NASABA letter asks the court to refer the lawyer who made the comment to the state bar and to initiate discipline against him. NASABA argues the comments violated Texas Disciplinary Rule of Conduct 5.08, forbidding discriminatory statements based on race or national origin.
I understand where NASABA is coming from, but I will leave the strictly legal analysis to people more familiar than I am with the Texas rules and with practice under them. I will instead assert a practical point: NASABA members need the court's help.
As a practical matter, a NASABA member faced with such comments made before a jury is not in a good position to object. Doing so would draw attention to the comments; it also would risk leading the jury to believe defense counsel is in court to defend people who don’t invent things and hate America rather than to defend their clients. No lawyer should be placed in such a position and no client should be forced to choose between letting improper comments pass without objection or hiring only attorneys who could object to such comments without adding fuel to the emotional fire the comments seem likely to light.
Because objections are unlikely in precisely those cases where the comments are most inflammatory--meaning, to be clear, where one of the lawyers or a witness on the other side might look like the sort of person to whom the comments apply--the court needs to send a message that it won't let this happen again. Perhaps the lawyer in this case did not think through the dilemma his comments created for defense counsel and did not intend to put counsel in a bind, but future lawyers might take a more tactical approach to such comments. I don't think it's in anyone's interest to let this sort of thing be repeated, least of all the court's.
I don't know what form the message should take; a word to the wise may be sufficient, if it gets around. I expect the judges in the Eastern District have a variety of effective means at their disposal and a good sense of how to use them. I hope they do.
DM
I find the comments ironic in part because India and Egypt have many engineers and do invent quite a bit. As far as the intellectual property argument goes, those countries in the past 2 decades have had much weaker IP laws and weaker enforcement of those laws than the US and India in particular has experienced enormous growth in its technology industries, so I'm not really sure the attorney's unfortunate comments would even help his cause. Moreover, they may have offended the jury, just as they have offended others.
Posted by: Law school grad | April 26, 2010 at 07:17 PM