Submitted by patentadmin on Thu, 05/05/2011 - 16:54

Often, lawyers are accused of being rude, undignified, discourteous and just plain obnoxious in the courtroom (and elsewhere, but that’s another matter). They generally respond that they are merely meeting their obligation to vigorously and zealously represent their clients. It is certainly true that they have such an obligation; yet, there must be some point beyond which their behavior is simply unacceptable. While we don’t know exactly where this point may be, it was certainly far exceeded in one recent case, where boorishness reached new heights. (Asahi Kasei Pharma Corporation v. Actelion Ltd. et al.)

Both Asahi and Actelion are pharmaceutical companies. Asahi “discovered” a new drug, Fasudil, for the treatment of pulmonary arterial hypertension (“PAH”), and entered into a license agreement with a third party, CoTherix, for its “development and marketing.”

Actelion markets a different drug, Tracleer, for the treatment of PAH. Tracleer is, at present, the only drug approved for treatment of PAH and annually generates over $1 BILLION in sales for Actelion. Shortly after Asahi and CoTherix entered into their license agreement, Actelion purchased CoTherix and, according to Asahi, induced or directed it to breach the license agreement. Asahi sued, claiming breach of contract, interference with prospective economic advantage and several violations of California state statutes but, somewhat surprisingly, not for any alleged anti-trust violation.

Asahi had advised the Court that it thought it could present its case in “seven days or less.” The trial, which is still ongoing, is now in its THIRD MONTH. The reader may reasonably wonder how a trial could go on for so long. The simple answer is that the attorneys on both sides are acting like childish jerks.

This juvenile behavior came to a head recently when counsel for Asahi filed a “Trial Memorandum Regarding Defense Counsel’s Trial Conduct,” accusing Actelion’s attorneys of conduct constituting a contempt of Court. “Regrettably, [Actelion’s] counsel’s conduct during the trial has deteriorated to such an undignified and discourteous degree that the orderly conduct of these proceedings is in jeopardy.” What exactly had counsel done?

Allegedly, they had accused the trial judge of
bias, had improperly coached witnesses, had lied, had shown “disorderly, contemptuous, or insolent behavior toward the judge” and, in general, exhibited a “lack of integrity and skill.” Moreover, asserted the Asahi counsel, “[g]iven the experience and professed talent of [Actelion’s] counsel, this improper conduct is not the product of untrained and overly zealous advocates, but rather reflects the implementation of a deliberate strategy to create a basis for a mistrial.” Yes, indeed, according to them, this was no ordinary display of lawyerly churlishness; it was a nefarious plot to cause a mistrial!

So, what did these stalwart champions of good manners and decorum request, so as to foil this plot? Their Trial Memorandum concludes, “Asahi respectfully requests that the Court admonish Defense counsel, on the record … and that further violations of the attorney’s code of conduct will result in sanctions …” (emphasis in the original) Take that, you ill-mannered boors!

Not surprisingly, the Actelion attorneys resented this assault on their good names – as if lawyers actually had good names. They responded with their own 31-page compendium of complaints, entitled “Response To Plaintiff’s Memorandum,” whining about all of the alleged misdeeds of the Asahi attorneys, stretching back over the previous two years.

Actelion began its response by asserting that it was Asahi that was seeking a mistrial. Actelion then went on, in the time-honored style of school ground miscreants, to enumerate, in excruciating and infantile detail, the alleged transgressions of the Asahi attorneys. These included, but are not limited to, filing frivolous motions, harassing and physically threatening Actelion witnesses, “likely” directing three of Asahi’s expert witnesses to change their deposition testimony, “continuously” acting disrespectfully to Actelion’s female counsel, insinuating that the Court would accept bribes from Actelion’s counsel, and improperly seeking to serve process on Actelion managers attending a pre-litigation arbitration proceeding – including following one of the managers into the restroom in an attempt to effect service. With regards to the alleged “discourteous” behavior towards the Court (read “towards the JUDGE”), Actelion, apparently relying on the legal maxim “no harm, no foul,” merely noted that “none of the examples of supposed conduct cited by Asahi occurred in front of the jury.”

The reader will note that Actelion’s opus magnus was 31 pages in length. Court rules limit memoranda responding to motions to 20 pages. Actelion, however, pointed out that the Asahi document was captioned as a Trial Memorandum, whereby the said limit did not apply.

No decision has yet been rendered with respect to any of this nonsense. Apparently, the only thing on which the parties can agree is that the other one wants a mistrial – something the Court seems loathe to grant – so settlement is unlikely. We’ll let you, the reader, know if the case ever goes to trial.

THE LESSON TO BE LEARNED: Even when they act like spoiled children, lawyers continue to bill like adults.

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