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Magistrate Judge Orders Jail Time for Voir Dire Question

By Anthony R. McClure, Litigation News Associate Editor – September 4, 2009

In a recent decision catching the attention of trial attorneys across the country, a federal magistrate judge ordered a patent lawyer to spend 48 hours in jail for asking an inappropriate question during jury selection. 02Micro Int’l Ltd. v. Beyond Innovation Tech. Co. [PDF]

According to Magistrate Judge Charles Everingham IV of the United States District Court for the Eastern District of Texas, the attorney tried to prejudice the jury in a trial of a patent case between his client, Beyond Innovation Technology Co. (BiTEK), and 02 Micro International Ltd. (02 Micro).

Background of the Case
02 Micro sued BiTEK and other defendants in 2004, claiming that they violated several 02 Micro patents. Before the first trial, scheduled for May 2006, the judge granted in part the plaintiff’s motion to preclude evidence relating to 02 Micro’s selection of the Cayman Islands for its headquarters. Specifically, the court ordered that “[d]efendants may refer to the fact that 02 is a Cayman Islands corporation. The motion is granted to the extent defendants seek to offer evidence relating to taxation.”

Following the first trial, a jury returned a verdict in 02 Micro’s favor, finding inducement and contributory infringement. The defendants appealed a number of issues, and the Federal Circuit vacated the jury verdict, remanding the case to the district court. 02 Micro Int’l Ltd. v. Beyond Innovation Tech. Co. [PDF]

Retrial was scheduled for July 27, 2009. In early July, the magistrate judge reissued the same in limine ruling, barring evidence relating to 02 Micro’s taxation. During the voir dire hearing, however, defense counsel asked the jury panel, “Now, are there any of you who have a problem with a company that puts its headquarters offshore on a Caribbean island in order to avoid paying U.S. taxes?”

02 Micro’s attorneys objected. When the magistrate judge requested an explanation, defense counsel said that the question was hypothetical, as he did not use 02 Micro’s name. The court held the attorney in contempt and issued sanctions.

“BiTEK, through its counsel, has undermined the parties’ expectations to a trial by a jury selected from the panel summoned according to the regular process of the court,” the magistrate judge stated in his order.

“By design, the question was intended to prejudice the jury against the plaintiff, which had been introduced as having its headquarters in the Cayman Islands,” the order says.

The magistrate judge sentenced defense counsel to 48 hours in jail, but suspended the sentence, stating that if counsel did not violate any further orders, his sentence would be considered discharged. The court also granted a motion for a mistrial by 02 Micro and severed the case against BiTEK from the case against the remaining defendants.

The court confirmed that a jury trial with a new panel would begin a few days later and ordered that BiTEK would be given half the voir dire time as 02 Micro, and only two peremptory challenges instead of four. It also ordered that BiTEK would not be entitled to call an expert witness on the issue of infringement.

Additionally, the court ordered BiTEK to pay all of the parties’ costs and attorneys’ fees involved in the first jury selection as well as the plaintiff’s costs and attorneys’ fees in having to try the severed case against the remaining defendants.

Mea Culpa
In its order, the magistrate judge invited the parties to submit briefs to show cause why the sanctions should not be imposed. BiTEK filed a brief with a declaration and letter to the court from its counsel.

In the brief, BiTEK apologized to the court and reported that the offending counsel had been removed from the BiTEK trial team.

However, BiTEK also argued that the question posed to the jury panel did not violate the court’s in limine ruling because that order prohibited only evidence of taxation—not references to taxation. BiTEK asked that the court not sever it from its codefendants and offered to accept no peremptory challenges or questioning of the jury panel (except for challenges and questioning for cause).

Magistrate Judge Everingham issued an order that its previously imposed sanctions would stand.

After one day of jury trial, the court asked the parties “whether there was a reason for this trial to continue as a jury trial since there were no state law claims.” The parties agreed to release the jury, and continued the trial as a bench trial. The final opinion of the court has not yet been issued.

Warning Signal and Lessons Learned
The magistrate judge’s sanctions order has sparked interest and thoughts of “lessons learned” among trial attorneys.

“Don’t try to live right on the edge of an in limine order. When a court orders something, it expects those orders are going to be followed not only to the letter, but also to the spirit. So once the in limine order has been issued, lawyers should steer clear of those areas,” advises Roberta Flowers, St. Petersburg, FL, cochair of the Professionalism Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee.

“Judges do not take kindly to having their rulings in limine parsed and then narrowly construed,” agrees Gregory Hanthorn, Atlanta, GA, cochair of the Section’s Ethics and Professionalism Committee Professionalism Subcommittee.

“Prudence would have dictated clarifying the court’s rationale before asking the question of the jury. It is not always easier to get forgiveness than permission,” Hanthorn says.

“Once a lawyer loses credibility with the judge or jury, it is very difficult to get it back,” notes Dori Ann Hanswirth, New York, NY, cochair of the Section’s Trial Practice Committee. “The consequences to the client can be enormous,” she says.

Sanctions Too Harsh?
Although the jail sentence has been creating headlines, some attorneys are more troubled by the other sanctions that the court imposed. For instance, “denying the ability to put on expert witnesses seems like a sanction that goes beyond what a court should do,” says Hanswirth. “These rulings are highly prejudicial to the party, who probably had nothing to do with the voir direquestion,” she observes.

“Sanctions that hit the client directly are things that lawyers take even more seriously than arrows aimed at themselves,” agrees Hanthorn.

“The thing that is most troubling about the court’s ruling on the infringement expert is that it is difficult to tie that back to the particular conduct that violated the order,” Hanthorn says.

“I am a little bit taken aback by the severity of the sanctions,” Flowers says. Nevertheless, she views the order as a warning to trial attorneys “that judges mean what they say and say what they mean, and you are playing with fire when you try to creatively circumvent their orders.”

Keywords: Sanctions, jury selection

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