Man Bites Dog

Submitted by patentadmin on Fri, 05/08/2009 - 00:18

As unlikely as it may seem, some misguided individuals actually hold lawyers in low esteem. Indeed, they exhibit a great deal of unreasoned antipathy towards lawyers. So, in keeping with our goal of trying to attract as many readers as possible – however ridiculous their beliefs – we report on the case of Ecast Inc. v. Morrison & Foerster LLP, wherein the defendants are lawyers. Yes, rejoice all you benighted clods, someone sued lawyers, alleging malpractice and breach of fiduciary duty.

Ecast had originally retained Morrison & Foerster (affectionately known – by those not suing them – as “MoFo”) to defend them in a patent infringement suit. It is now alleged by Ecast, that MoFo:

(1) breached its agreement that a specified attorney would “personally handle” the case, while another specified attorney “would not handle any in-court presentation”;

(2) failed to submit the report of defendant’s technical expert in a timely manner or to assure that it “laid a sufficient foundation to support Ecast’s defenses”;

(3) failed to adequately explain the advantages – like significant cost savings – to be gained by seeking re-examination of the patents-in-suit; but, instead “intentionally put their (MoFo’s) own financial interests and the gain realized by a full blown litigation…ahead of the interests of their client” (imagine a lawyer doing that);

(4) failed to take discovery of plaintiff and its subsidiary which was essential to contesting plaintiff’s claim for lost profits (the amount at issue here was $47M); and

(5) failed to develop a case plan or strategic defense.

Ultimately, there came a point when the folks at Ecast, who apparently couldn’t take a joke, terminated MoFo and retained substitute counsel who, allegedly, were compelled to settle the case under less than advantageous terms. By this point, MoFo had, again allegedly, billed “over $4.8M” and “estimated that an additional $3.7 million in fees would be needed to get through the trial.” This was, yet again allegedly (no-one is going to accuse us of slandering a pack of lawyers), “double the amount initially quoted…at the onset of the case.” Ecast further alleged that MoFo endlessly transferred the case from one attorney to another, with “over 48 attorneys, paralegals and staff” billing for work on the case, several of whom MoFo could not even identify (firm slogan – hi-ho, hi-ho, we all work at MoFo).

Being sore losers, as well as humorless, Ecast then hired a second pack of lawyers to sue their first pack of lawyers.

THE LESSON TO BE LEARNED: The management of IP litigation is a complex task best not attempted by amateurs. If you are contemplating such a suit, and you lack experience in such matters, consider retaining professionals to oversee it.

Add new comment