Cisco on the Wrong Side of Xenophobia and Anti-Religious Jury Tactics

Update – After thinking reading through this post, it is probably too harsh against Cisco. I was primarily set-off because I read this case involving Cisco's problematic litigation tactics immediately after I read about Cisco's general counsel complaining to Congress about the problematic litigation tactics of patent licensing companies.

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By Dennis Crouch

Foreign litigants often have a real fear of American juries. Back in 2003, Judge Moore (then Professor Moore) authored an interesting article titled Xenophobia in American Courts. In her article, Judge Moore looked at a large dataset of patent cases and found substantial support for the hypothesis that foreign parties are treated worse by juries than their domestic counterparts. This issue has been explored in a number of ways by academics and has parallels to other jury bias issues based upon race or religion. In general, the notion is that it is cognitively easier for people to negatively judge the actions of someone considered an "other."

The recent case of Commil v. Cisco raises some of these issues. And, although Judge Moore was not on the panel, the Federal Circuit agreed that anti-foreign and anti-Semitic tactics before the jury create prejudice that warrant a new trial.

The patentee, Commil, is an Israeli company that filed an infringement suit against Cisco in the Eastern District of Texas. In the first trial, the jury awarded $3.7 million in damages. However, Judge Everingham ordered a new trial based upon the prejudicial effect of "Cisco's counsel's improper religious comments." In the new trial, the jury awarded $63.7 million in damages. On appeal, Cisco asked that the first trial judgment be reinstated. On appeal, however, the Federal Circuit affirmed the new trial finding.

The particular prejudicial are as follows:

  • While being cross-examined, Mr. David (the Commil inventor and co-owner) mentioned eating at a barbeque restaurant to which Cisco's counsel responded "I bet not pork." Counsel then went-on to ask Mr. David whether his cousin was a "bottom-feeder who swims around on the bottom buying people's houses that they got kicked out of for next to nothing."
  • In closing arguments, Cisco's counsel began with a reference of the trial of Jesus – saying "You remember the most important trial in history, which we all read about as kids, in the Bible had that very question from the judge. What is truth?"

Considering these statements, Judge Everingham wrote:

This argument, when read in context with Cisco's counsel's comment regarding Mr. David and Mr. Arazi's religious heritage, impliedly aligns Cisco's counsel's religious preference with that of the jurors and employs an "us v. them" mentality – i.e., "we are Christian and they are Jewish."

Commil USA, LLC v. Cisco Sys., Inc., No. 2:07–CV–341, slip op. at 3 (E.D.Tex. Dec. 29, 2010).

On appeal, the Federal Circuit found that these actions warranted review and additionally highlighted other aspects from the trial:

For instance, during the voir dire, Commil's counsel explained that the case began in Israel, "the Holy Land for many religions." Later, during closing argument, Commil's counsel argued with respect to damages that Cisco wanted the jurors to "split the baby" and "You know, that wasn't wise at the time of King Solomon. It's not wise today."

Based upon these elements, the Federal Circuit had no trouble finding that the new trial was warranted.

 

[Updated to delete my harsher remarks]

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The interesting and important legal issue in this case is how the Federal Circuit allowed a partial-new-trial rather than a full trial.

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See also, Hal Wegner, Commil v. Cisco, a Sidebar: Judicial Denunciation of Anti-Semitic Jury Tactics, http://www.laipla.net/commil-v-cisco-a-sidebar-judicial-denunciation-of-anti-semitic-jury-tactics/ .

23 thoughts on “Cisco on the Wrong Side of Xenophobia and Anti-Religious Jury Tactics

  1. Any way I can read those earlier harsh remarks? Because just by reading this, I am horribly appalled by Cisco’s behavior. This is egregious and that stupid lawyer outta be disbarred.

  2. I’m of south-Asian Muslim background and work in the tech industry in California – although I’m utterly not religious . I have a ‘neocrypto-jew’ (I believe its my neoligism) colleague. I refer to him as a neocrypto-jew’ because he has to keep his jewishness a secret given the high level of anti-semitism among our other muslim colleagues. Its really an analogue to why I have to keep my non-religiousness a secret around them as well. They are openly hostile to jews/isreal/atheists etc at work. And well… white liberals don’t want to turn them into ‘others’ so we all have to pretend this growing base of bigotry doesn’t exist.

    1. RT, I am not sure this “anti-Semitism” is confined to Muslims. It has to do with Israel, which the left generally characterizes as a racist, colonial power. The left are openly anti-Zionist. One could refer to the famous reverend Wright, but I have personally seen a lot of this myself.One could argue that anti-Zionism is just as legitimate as Zionism from a political point of view. The problem is that it manifests itself in anti-Semitism where anybody who is Jewish is openly attacked.I think back to what happened in Europe in the ’30s and ’40s. Mr. H didn’t hate Jews in WWI. That was clear. It was only after the war when the German aristocracy started blaming the Jews for the lost war that it became fashionable to be anti-Semitic. It was the mixture of politics with anti-Semitism that was so virulent.If we could learn from history, we should.

      1. “It has to do with Israel, which the left generally characterizes as a racist, colonial power. The left are openly anti-Zionist. “You really need to get out more, Ned. Unless you have a very narrow definition of “the left,” this is a ridiculous statement.

        1. Well, there are all kinds of leftists, LB. But what I say has been true as long as I can remember from college campus’s here, from radical leftist radio, and the people who organize demonstrations in and around Oakland.

  3. I once had a case in Texas and we had a debate on counsel. I chose a Northern Counsel, with local support. The other side chose local counsel. I was advised against this because of local bias. Well, you should have seen what went on in court. The other side’s counsel had a deep, bass voice with a heavy Texas accent that contrasted with our counsel’s rather bland tone. The other side’s counsel made continuous references to the fact that his client was local, and that “we all” didn’t like foreigners coming into to Texas….It went on and on like that.We lost.

    1. During a big trial in Tyler I overheard local counsel for one of our co-defendants make an appallingly racist comment (directed at a South Asian juror). I called him out on it and he proceeded to make an inference about my sexual preference. A more senior member of our team told him to shut up and that’s where we left it.When in EDTX you need to find local counsel who have local charm but are not bigots. It can be done. Our own local counsel were fantastic.

  4. yeah pretty bad stuff going on during the trial, I’m actually surprised nobody stepped in during the trial and said hey w t f bro? But then again, even as old as I am and as much as I read about religions I still cannot fathom how it is that christian minds can think that they’re substantively different from the jews. At worst, the jews are simply folks that haven’t been won over to the big jew J yet.

  5. I’m no fan of Cisco but this seems a little much:This case, coupled with Cisco’s involvement with the Patent Troll Tracker debacle, leaves Cisco with basically no credibility in the ongoing debate over patent reform. I don’t get the link between Cisco counsel’s behavior in this case (inexcusable and ugly) and “credibility” in a debate over patent reform. The attorney involved apologized. Does anybody believe that Cisco is an anti-Jewish company? In general, the notion is that it is cognitively easier for people to negatively judge the actions of someone considered an “other.”Right. Isn’t that one of the reasons that patent trolls sue their “Left Coast” targets in East Texas?The practice of manipulating juries by preying on their prejudices (subtly or non-subtly) is definitely an important topic. I realize that it’s shocking to contemplate that the practice might be particularly effective in Texas, of all places (given its long history of tolerance and progressivism). One can imagine how lawyers there might even “get in the habit” of cleverly dropping prejudicial hints to juries after discovering that “it works sometimes.”

    1. This one is bizarre. But, I am not sure of the nexus between the trial attorney’s misconduct and Cisco patent policies.

  6. The Cisco Kid was a friend of mineThe Cisco Kid was a friend of mineHe drink whiskey, Poncho drink the wineHe drink whiskey, Poncho drink the wineWe met down on the fort of Rio GrandeWe met down on the fort of Rio GrandeEat the salted peanuts out of canEat the salted peanuts out the canThe outlaws had us pinned down at the fortThe outlaws had us pinned down at the fortCisco came in blastin’, drinkin’ portCisco came in blastin’, drinkin’ portThey rode the sunset, horse was made of steelThey rode the sunset, horse was made of steelChased a gringo last night through a fieldChased a gringo last night through a fieldThe Cisco Kid was a friend of mineThe Cisco Kid he was a friend of mineLest I be scolded by 6 again:link to youtube.com

  7. I think the lead attorneys were with Simpson Thacher, but the attorney who made the offensive comments in closing was a E.D. Texas local, Otis W. Carroll, Jr.

    1. A – here’s the story on the old comments. We are in the midst of transferring the blog to an entirely new platform and system. This is taking quite a while because of the large number of posts / links / documents / comments. I have a team of folks working on this and the plan is to fully restore all of the comments at that point. Dennis

  8. Hmmm… I remember discussing this case several months ago. As I said then, the behavior in this case was truly disgraceful. That said, though, why is this coming up again? Is something being done about it, or did someone just feel an urge to embarrass Cisco?On another point, it’s certainly true that Cisco is ultimately responsible for its counsel’s behavior. However, the involved attorneys have their own individual ethical (and moral) obligations. I find it interesting that they manage to go unnamed in this discussion.

    1. I have to say, I had much the same reaction. Why now? Your article really went off the rails with the concluding remark that “[t]his case, coupled with Cisco’s involvement with the Patent Troll Tracker debacle, leaves Cisco with basically no credibility in the ongoing debate over patent reform.”This is a bizarre post that revealed itself as nothing more than a Cisco hit piece based on very old events. Your mention of the “Troll Tracker Debacle” is particularly telling, considering that the person responsible for the “Troll Tracker” blog revealed himself and stopped publishing it in early 2008. He left Cisco the same year and, today, is apparently now a successful IP partner at a large firm. Everyone has moved on and put it past them, apparently except you, Dennis.The Commil v. Cisco trial actually took place in 2010, and the Federal Circuit opinion issued in March 2011. Why raise this now? Cisco has been in dozens of patent cases over the years. No one can condone the behavior of that trial counsel, and it is despicable to attempt to influence a jury with appeals to religious differences and ancient Christian vs. Jewish hostility. Cisco is of course accountable for the behavior of the counsel it hires to speak on its behalf, but no one will ever know if Cisco directed those remarks or if the trial counsel (a well-known and somewhat eccentric local) improvised. In either case, it seems wrong to indict an entire company over the behavior of its trial counsel in a single patent case that was tried more than three and a half years ago.Everyone knows you’re against patent reform, Dennis, but trying to smear the credibility of a patent reform advocate such as Cisco, based on isolated and old events, seems like the kind of reaching that, in the end, damages your credibility and not Cisco’s.

      1. To be clear, the Federal Circuit opinion cited by Dennis issued in June of this year – it says that the second district court case concluded in September of 2011. In defense of Dennis, it appears that this article was at least partly triggered by Hal Wegner’s short piece on the case from last week. But I agree that it comes across as quite hostile to Cisco.

        1. That’s right. The original trial happened in 2010, and a retrial occurred in 2011. The issue did not reach the Federal Circuit until June 2013. Still wondering why such a stale incident by one of its outside trial counsel (who did in fact apologize for his statements) would warrant a hit piece on Cisco, or lead to the conclusion that Cisco has “no credibility in the ongoing debate over patent reform.”

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