Monday, July 14, 2008

Case Settled

My intellectual property case with my former employer has been settled with prejudice (see here), meaning, both sides agreed to withdraw their claims and cannot refile them. I have no comment on the case or the settlement.

But, if you are involved in intellectual property, here is what I think are good ideas based on thinking about legal issues the past couple years (Any relation to my specific experience is entirely coincidental; this is not legal advice; see a lawyer before destroying any confidential information; this is exactly why there is no good legal advice on the web):

1) After you leave your employer, search all your hard drives for any file 'created' or 'modified' during the period of your employment. It doesn't matter if you think it is not a secret or even work related. Delete them, regardless of their public domain nature, because ‘public domain’ is a subjective assessment. Transfer any remaining files onto an external device. Install software on new hard drives, then transfer over any legacy files from the external device. Finally, destroy the external device used in the intermediate transfer. You want nothing remotely connected to the tenure of your employment in your position, regardless of relevancy, including deleted files, cached snippets of files from Google Desktop, shadow copies, etc.

2) Note the prior legal activity of your business associates by searching the state and federal district websites. Read the actual cases, there's usually a good bit a detail, so it rarely requires a law degree or insider knowledge to assess the merits (the court has to assess cases using the law, individuals can rely on their common sense). Also, look at the experience of ex-employees. If they all seem to get ‘different’ jobs, this suggests there might be some legal intimidation that never made it into the court record. Remember, everyone but total psychopaths consider themselves to be acting righteously, and smart people can rationalize anything. Look at what they do.

3) Expect your adversary to take everything your write down or have said out of context, because that's what good lawyers do. The US legal system is predicated on the idea that justice comes from two highly biased, opposing perspectives, so they see tendentious arguments as part of a greater good. The more things you have written, the higher the probability that some snippet can be made to look incriminating. Therefore, to the degree possible, get in the habit of using the phone, or meetings, to discuss strategy, tactics, or anything substantive.

4) In large corporations, legal action needs to be justified to higher-ups who don't give a damn about petty slights and injured egos. Therefore, if you are in a case that seems not justified by some cost-benefit calculation, avoid big corporate lawyers because they will be flummoxed by your adversary.

5) Civil litigation is about pretext, process, and justice, in various degrees depending on the players and issues involved. Making a pretext look like a principle, and working the process, is where lawyers earn their money. Most civil litigation does not go to trial, which means the merits or consistency of the case is not very relevant because such issues are mainly relevant at trial, and judges like to defer anything close to a judgment on merit to juries.

6) Get counterclaims inserted in your case ASAP, and be sure to mention specifics of bad faith and damages in these counterclaims.

7) If your jurisdiction does not have a precedent for some ruling that is common in other jurisdictions and seems common sensical, do not expect your judge to create one.

8) It does not take very long for your specifics to become unfamiliar to every lawyer in America, so your field’s specificity is irrelevant in choosing a lawyer. You will pay at least $50k, so like buying a car it's worth a 30 minute discussion and a few visits to find one you like at a good price (don't simply go with your buddy's recommendation).

9) Litigation is combat, sometimes necessary to protect one’s livelihood, justice, or reputation. But like fistfights, the vast majority are stupid. While fighting can often be blamed on too much beer, excessive litigation is caused by people overestimating their grievance and underestimating the legal costs.

And most importantly,

10) Be rich. As most cases are settled, this implies negotiation, and having the ability to inflict and withstand greater expense gives one an advantage.

8 comments:

Anonymous said...

So does this mean congratulations are in order?

Eric Falkenstein said...

My only comment, is that I have no comment, on the case or the settlement :) general stuff I will continue to bloviate upon

Pete Sattler said...

Congratulations on having this over with.

gabe said...

glad it's over. where i come from that prick would not get off so easy. but that's just me.
i hope you won't stop posting here now that the rentechs and citadels will probably scoop you up.

J. said...

Congratulations. I understand you are free to calculate standard deviation on your computer without fear of litigation. Still you got me worrying with your comment 'public domain’ is a subjective assessment.

Anonymous said...

Well handled! I don't doubt that the calm, collected litigant presented was different from what was going on outside the blogosphere. But still very impressed. Here's looking forward to further bloviations.

Sameer said...

Congratulations! Good to hear that you can now move on with your life.

Seth Berlin said...

Does this mean that Falken Fund will be coming soon?