Attorney Dishonesty Is Losing Strategy

Attorney Dishonesty Is Losing Strategy

Following a three-week patent-infringement jury trial, a partial victory for Tesco Corporation and its lawyers from Bracewell & Giuliani LLP was short-lived. As reported by Jeremy Heallen at Law360, Judge Keith P. Ellison of the U.S. District Court for the Southern District of Texas has little appetite for lawyers’ misrepresentations to the court.

Tesco Corporation brought a patent-infringement case against Weatherford International and a number of other defendants. (See documents from the case at docket number 4:08-cv-02531.) During trial, a Tesco witness unexpectedly testified that the allegedly patented invention was displayed in a marketing brochure. Given the facts of the case, if the invention was pictured as testified, the case would likely have been dismissed. After a recess, Tesco’s lawyer, Glen A. Ballard, Jr., repeatedly and unequivocally asserted that he had spoken to the designers of the brochure and that the picture did not depict the invention in question. In one instance the record reports that Ballard assured the court:

The animators that actually did the brochure and that actually did the rendering are prepared to swear and testify that this is not [inventor’s] invention; and in fact, there is no doubt it’s not [inventor’s] invention.

Based on Ballard’s claims, the brochure issue was considered resolved. The jury went on to find partially in Tesco’s favor.

With questions remaining, however, the court permitted limited post-trial discovery. One of the two “animators” Ballard claimed would testify that the picture was not the invention in question, Don Karr, was deposed. Ballard’s misstatements and the truth known by John Luman, Tesco’s other trial attorney, became all too clear. As quoted by the court in its memorandum and order dismissing the case, the Karr deposition provided fairly conclusive evidence:

Karr Depo. at 12:12-19.

Q. All right. Did you inform Tesco at that time you were not the one who created the image? Did you tell them one way or another whether you —

A. No, I did — I — my only input to this brochure was the photographs. Someone in Houston created this — this image.

Q. Did you tell Tesco that in November of 2010?

A. Yes.

Q. Who did you tell that to?

A. It would have been John.

Q. Luman?

A. Yes.


Karr Depo at 20:16-21:3.

Q. Would it surprise you that they told the Court that they’ve gotten to the bottom of it, and that you and [other animator] did the brochure, and they never mentioned [other party]?

A. There is no way I did that brochure.

Q. So that would be a false statement; correct?

A. Totally.

Karr Depo 42:13-43:2.

Q: Did you have a discussion with Mr. Luman about who prepared this graphic, the one in the centerfold?

A: He had asked me if I had, and I said no. I had nothing to do with it.

After the revelations, Judge Ellison dismissed the case with prejudice. He wrote that “such an affront to this court, to the other parties, and to judicial integrity can only be answered with dismissal.” In addition to the dismissal, Judge Ellison let it be known that the court would entertain motions for attorney fees.

The court did not yield its inherent powers “to safeguard the integrity of the court” without careful deliberation.  The court prefaced its order by acknowledging the “sever[ity]” of dismissing a case and the “potency” of awarding attorney’s fees. But Judge Ellison wrote:

the Court reluctantly concludes that Tesco’s representations amount to an abuse of the judicial system; they are most certainly “‘acts which degrade the judicial system.’” (citations omitted).

Besides telling the truth, to stay on the right side of the court in federal IP cases, consult O’Connor’s Federal Rules * Civil Trials and O’Connor’s Federal Intellectual Property Codes Plus.

flickr image by is licensed under CC BY-SA 2.0

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