Justices appear to favor federal courts as forum for patent malpractice cases

, The National Law Journal


Lawyer malpractice cases, usually handled in state courts, rarely find their way onto the docket of the U.S. Supreme Court. But the high court on Wednesday took up a Texas legal malpractice case—not to decide if the lawyers involved really messed up, but rather to determine whether it should have been litigated before state court or federal court. The reason for the uncertainty is that the alleged malpractice occurred during a patent infringement case—and patent issues are the province of federal courts.

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What's being said

  • Removal Expert

    It probably doesn't matter what the Supreme Court says. Scalia is right. The courts will likely do whatever is expedient, regardless of the ruling.

    I am reminded of my own journey into the weeds of federal subject matter jurisdiction. It occurred after being victimized in an employment case I brought in federal court (arguably malpractice in and of itself).

    The case was improperly dismissed on summary judgment -- as most are (no surprise there). Things took a strange turn in the appeal when the circuit affirmed using reasoning that contradicted the factual findings of the district court.

    What was really bizarre was that the circuit's reasoning relied on a bogus document that had been materially altered by defendant's counsel. The only reason the document had not been cited in the district court's decision was that counsel had essentially been forced to admit to the district judge that he had altered the record for purposes of creating a material fact that favored the defendant.

    The judge's only response to counsel's shocking confession was to replace the initial summary judgment opinion with one that did not reference the bogus document. [Apparently, denying summary judgment and sanctioning the attorney were not viewed as acceptable options.]

    After losing the appeal because of the fraud, I filed tort actions, twice, against the attorney and others, The actions were stopped in their tracks by being remove from state to federal court and assigned to the same district judge who had handled the employment case. There was no way this judge was going to allow a state court to see how the federal court had handled the employment case. Since he had the full backing of the circuit on that score, Supreme Court rulings on jurisdiction simply did not matter.

    Long story short:

    I abandoned the entire effort after resigning myself to the reality that the federal court was intent on keeping the fraud claims out of state court. In the last decision on the matter, the circuit affirmed the district court's erroneous dismissal of the claims as untimely. The jurisdictional question was not even acknowledged in the court's opinion, even though it was the only issue raised in the appeal.

    So much for justice and the rule of law....

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