As experienced trial lawyers know, successfully trying or defending a case is all about presenting a compelling, understandable theme and narrative that comports with a judge and jury’s common sense and experience. Juries especially are prone to favor litigants and lawyers they like and case theories they easily understand. That is human nature on display… Continue Reading
Category Archives: Legal Malpractice
Subscribe to Legal Malpractice RSS FeedIs it Time for Federal Courts to Stop Exercising Jurisdiction Over Patent Legal Malpractice Claims?
Posted in Conflicts of Interest, Expert Witness, Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent Prosecution, Rules of Professional ResponsibilityDuring past month when many patent practitioners may have been distracted by the “laws of nature” meaning of the Mayo v. Prometheus decision, the Court of Appeals for the Federal Circuit issued four precedential rulings confirming the exclusive authority of federal courts to adjudicate patent legal malpractice claims. Only the Supreme Court can alter this… Continue Reading
The Perils of Patent Prosecution Delegation: A Cautionary Tale
Posted in Expert Witness, Legal Malpractice, Patent Prosecution, Rules of Professional ResponsibilityWhat happens when a start-up company (Protostorm) retains a sole practitioner to prepare provisional patent applications, another solo lawyer to prepare the corresponding U.S. non-provisional application, and yet another firm to file the resulting Patent Cooperation Treaty (“PCT”) application? This is getting complicated, right? Add to this mix these salient facts: (1) neither Protostorm nor… Continue Reading
Emerging Fissures in Exercising Federal Jurisdiction Over Patent Legal Malpractice Cases
Posted in Federal Jurisdiction, Legal MalpracticeOver four years have elapsed since the Federal Circuit first held that federal courts possess exclusive jurisdiction over patent legal malpractice claims. In Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007), the court ruled that patent claim scope issues alleged in patent legal malpractice claim raise substantial federal issues. Similarly,… Continue Reading
Have You Been “Hired,” But Not “Retained”? and Other Life Lessons from Davis v. Brouse McDowell
Posted in Expert Witness, Legal Malpractice, Patent Prosecution, Proximate CausationDavis v. Brouse McDowell (pdf) is the Federal Circuit’s first precedential patent legal malpractice decision issued in 2010. It offers yet another cautionary tale for both plaintiffs and defendants in their pursuit and defense of patent legal malpractice claims. Most will read and analyze the Davis case for its ultimate holding, i.e., conclusory expert witness testimony regarding… Continue Reading
Twin Challenges in Drafting a Viable Patent Legal Malpractice Complaint
Posted in Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent PleadingsDrafting a short and plain statement of a patent legal malpractice claim used to be a relatively straightforward matter under the now discredited Conley v. Gibson “no set of facts” standard. That pleading landscape dramatically changed in 2007. In the wake of the Supreme Court’s Twombly and Iqbal decisions, federal court judges are now routinely called… Continue Reading
The Ethical Obligation to Self-Report Patent Legal Malpractice
Posted in Insurance Claims, Legal Malpractice, Rules of Professional ResponsibilitySelf-reporting your errors in prosecuting a patent application or litigating a patent claim is surely not on any lawyer’s “to-do” wish list. Many errors are correctable, stem from legitimate differences of opinion, or are of only minor moment. Part of the art of lawyering is perceiving and correcting errors before they become material impediments to the… Continue Reading
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