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					                            LITIGATORS CORNER:                                                        GOOD LAWYERS DISCOVER AND TRY
                                                                                                      CASES ON THE FACTS
     What Makes a Good Lawyer?                                                                           My respect is reserved for lawyers who
                                                                                                      discover and try cases on the facts. In one of
                                                                                                      my criminal prosecutions involving a mail
                          BY JOSEPH N. HOSTENY,     GOOD LAWYERS DON’T GET BOGGED                     and wire fraud scheme about “leverage con-
                                                                                                      tracts” in precious metals, one of the defen-
                          OF NIRO, SCAVONE,         DOWN IN PROCEDURAL TRENCHES
                                                                                                      dants was represented by Meyer Lansky’s
                          HALLER & NIRO                 There are civil suits that are as much fun,   lawyer, David Rosen. I thought to myself
                                                    but unfortunately, there aren’t enough of         that, since he was representing a famous
                         Regular IP Today
                         columnist Joseph           them. Too many bog down in the procedural         mobster, we might be in for a dirty fight. But
                         N. Hosteny is an           trenches, and that is often intentional. Why?     we were not. We fought the case out on the
                         intellectual property      First, civil cases get discovered to death. A     merits. It took one trial, an appeal, and
                         litigation attorney        year or two, and sometimes more, of discov-       another trial. But it was a fair fight.
with the Chicago law firm of Niro, Scavone,         ery precedes any trial. That, of course, leads    GOOD LAWYERS ARE INDEPENDENT
Haller & Niro. A Registered Professional            to considerable expense, which translates
Engineer and former Assistant US Attorney,                                                            AND IMPARTIAL
                                                    into fees for attorneys. The expense makes
his articles have also appeared in Corporate                                                              A good lawyer has to maintain indepen-
                                                    law firms, particularly big ones, acquire the     dence and a reasonable degree of impartial-
Counsel Magazine, The Docket (American              capability to engage in discovery of this kind
Corporate Counsel Association), American                                                              ity. Do speak up for your client, but don’t
                                                    in every case, leading to a costly structure      become the client’s mouthpiece. When I
Medical News, Inventors’ Digest, Litigation
                                                    that has to be fed with, of course, the expense   watch the nightly news and see a defendant’s
Magazine and Assembly Engineering
Magazine. Listed in Who’s Who, Mr.                  of more discovery in more cases. Lawyers get      lawyer protesting his client’s innocence in
Hosteny was recently named to the Board of          comfortable doing what they know best.            the lobby of the Dirksen federal court build-
Editors of Patent Strategy & Management (a              There is another reason, too. It happens      ing, or at the state criminal court at 26th and
monthly publication of American Lawyer              because many lawyers believe that learning        California, I sometimes wonder how those
Media), for which he will also be writing           ends when they graduate from college and          attorneys have so much personal knowledge
periodic guest columns. Mr. Hosteny can be          law school. It seems to be easier for them to     of what their clients did or did not do that
reached at (312) 236-0733, or by e-mail at                                                            they can vouch for them so confidently. In
                                                    fight cases on procedural grounds, which are
jhosteny@hosteny.com, or by visiting his                                                              the U. S. Attorney’s office, we won over 90%
                                                    as familiar as an old pair of shoes. Learning
web site at http://www.hosteny.com.                                                                   of the federal criminal cases we brought,
                                                    something new is unpleasant for such peo-         either because the defendant pleaded guilty
                                                    ple; they shy away from educating them-           or was found guilty at trial. In most cases,



T
                                                    selves about new technology or new facts.         the defense attorney loses credibility by
      he other day, I began contemplating
                                                    They are afraid. Besides, they can spend          going too far in vouching for his clients.
      what distinguishes the lawyers I
                                                    more of their client’s money and time quar-       Perhaps the desire is to win the case on TV
      respect from those I do not respect. A
                                                    reling over documents, refusing to stipulate      or the newspapers. I do not know. All I know
number of differences came to my mind and,                                                            is that it usually fails.
                                                    to anything, writing abusive letters, and
in this column, I would like to share some of                                                             If you do not preserve your indepen-
                                                    issuing discovery requests that reveal an
them with you.                                      abysmal lack of knowledge of the case.            dence, you will not be able to advise your
                                                        The preference for procedure rather than      client, because you will be indistinguishable
GOOD LAWYERS FIGHT FAIRLY                           substance lends itself to an easy, and too
                                                                                                      from him or her. You must be able to be
    A willingness to fight the case through on                                                        objective, and to tell your client the bad, as
                                                    common, defense: assault the honesty of the
it merits — staying out of the gutter — earns                                                         well as the good, news about the case.
                                                    other side and its lawyers. In one of our
my respect. As federal prosecutors, my col-         cases, the defendant’s principal defense was      GOOD LAWYERS WRITE WELL
leagues and I enjoyed the fair fight of a trial.    mud slinging: accusing our client of fraud,           First-rate writing is another hallmark of
We found those cases, where each side chal-                                                           the good lawyer. I remember ten years ago
                                                    and even filing a RICO claim, naming
lenged the other with real imagination, real                                                          reading a brief written by our opposing
                                                    lawyers in our firm. The claim had no legal
thinking, and an effective presentation of the                                                        counsel in a case in Tennessee about trade
                                                    or factual basis, and the opposing lawyer ran
facts, to be the most fun. The trial of a crim-                                                       secrets. The two companies involved were
inal case without the nastiness that accom-         into court and withdrew it as soon as our
                                                                                                      intense rivals. The case was fought very
panies so many civil suits was a real joy.          motion pointed out the deficiencies in the
                                                                                                      hard. The opposing lawyer wrote an out-
Mostly, we won. But even if we lost, we             claim. But in concentrating on these kinds of
                                                                                                      standing, short brief, describing the litiga-
would lick our wounds and still feel that we        tactics, the opposing side was diverted from      tion as, “This is as close to war as it gets.” I
had been through a fair experience where            learning the facts and analyzing our              still remember how clear and simple his
our system of justice led to a trial where the      defenses. Valuable time and resources that        writing was, and that he was able to describe
jury was fairly confronted with the facts, and      could have been devoted to proving infringe-      the intensity of the contest without demean-
made its decision based on those facts.             ment were lost.                                   ing anyone, even his opposing counsel.

44                                                 INTELLECTUAL PROPERTY TODAY        OCTOBER, 2002
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GOOD LAWYERS READ THE LAW                         seven years of schooling have persuaded too      GOOD LAWYERS ARE ABLE TO
                                                  many of them that they are superior to the
    Laziness in reading the law is another
                                                  rest of mankind. But like all the doctors on
                                                                                                   PUT THEMSELVES IN THE OTHER
hallmark of the bad lawyer, or at least the
                                                  “St. Elsewhere,” who were not as smart as        PERSON’S SHOES
slothful one. We were taught in law school to     the janitor, wisdom and judgment aren’t              As prosecutors, we analyzed every case
read the case, and perceive the facts that        taught in school.                                where we intended to seek an indictment.
controlled the court’s decision about the law.       Some of us are lucky. I served in the Navy    The facts were reviewed. The law was
But many lawyers these days are not readers.      and worked as an engineer before going to        reviewed. Most of all, the potential defenses
They believe in the quantity, not the quality,    law school. All other things being equal, the    were analyzed. All of this was reduced to a
of their citations. The only thing they read      lawyer who has some work experience in           memorandum that was reviewed by two or
are the headnotes, which I would eliminate        another field has the advantage. Law school      three experienced supervisors. There were a
from published decisions if I could. You read     is a break from reality. Consequently, I         couple of reasons for doing this. First, we
a string of case citations in some lawyers’       respect the lawyer who has done something        were going to try to put someone in jail. We
briefs, each followed by a parenthetical; you     besides practicing law.                          wanted to be sure that the facts justified
get the impression that the writer has looked
                                                  GOOD LAWYERS CAN DO                              doing that, and that the defendant was gen-
at many cases, and applied them all. But
                                                                                                   uinely guilty. We were motivated to be as fair
then you get the reporter, and when you read      ALL PARTS OF A CASE                              as possible.
the first cited case yourself, you discover a         Some lawyers don’t do anything but the
couple of things: the parenthetical comes                                                              But many civil practitioners never seem to
                                                  trial. In one of our earlier cases, all of the   be able to put themselves in the other person’s
from the summary of the case; and the other       lawyers on our side were taking and defend-
cited cases aren’t independent at all,                                                             shoes. There are practical, and even ethical
                                                  ing depositions. We got to see who was a good    reasons to do so. First, anyone who wants to
because the first case quotes all of them. The    witness and who was not. We saw who could
brief writer didn’t read; he just cut and                                                          bring an inequitable conduct defense should
                                                  handle the difficult question and who could      have the decency to at least try to look at the
pasted. This is one of the bad things our use     not. We saw how the other side’s lawyers han-
of computers has done to us; it is too easy to                                                     issue from the other side, before besmirching
                                                  dled themselves. But on the other side of the    someone else’s reputation.
inflate the number of words, and too easy to      case I mentioned above, the lead lawyer did-
cut and paste from one document to another.                                                            The second reason is practical. If you are
                                                  n’t do a single deposition. He spent most of
Does any law school teach its students to use                                                      going to win the case, you must be able to
                                                  his time before trial doing his best to make
a word processor correctly?                                                                        overcome any defenses. You must brainstorm
                                                  trouble, like filing a RICO complaint.
                                                                                                   those defenses, not from the perspective of
                                                      He never got a feel for the facts and peo-
GOOD LAWYERS ARE WELL ROUNDED                     ple of the case. I don’t know how lawyers can
                                                                                                   why they are defective, but rather, from the
   We’ve heard the jokes about the aristo-        do that. I think much more of the lawyer         viewpoint of someone who fervently believes
crat born with a silver spoon in his mouth.       who, regardless of seniority, is willing to do   in that defense. You will be surprised how it
Lawyers who have gone through four years of       some of the drudge work: look at documents,      will help you refine and focus your own case.
college and three years of law school are         answer interrogatories, defend depositions,          I’ve seen quite a few lawyers over the
rightly proud of having completed that long       take depositions, and go to court on a           years. Some stand out. They stand out
task. But the other side of the coin is that      motion. Cases are won based on knowledge         because they fight hard but fair, know their
many law school graduates have never done         of the facts and the testimony obtained. Dig     cases, are in touch with the real world, write
anything else but go to school. They don’t        in. Get your hands dirty if you want to know     well, maintain objectivity and see clearly both
have any ordinary work experience. Their          what is going on.                                sides of the case. It isn’t easy to do. IPT

                                                 INTELLECTUAL PROPERTY TODAY       OCTOBER, 2002                                               45

				
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