The Promise Of Billions

IP lawyers must be cognizant of the role of emotion in driving the actions of their clients and adversaries in order to give their best counsel.

At some point in every IP lawyer’s career, the outsized role emotion can play in IP disputes becomes clear. Some realize it very early on, perhaps because they have a case representing an aggrieved inventor or creator for whom the dispute is emotionally charged from the get-go. For other IP lawyers, it can take some time to look past the technical and legal aspects of an IP dispute to appreciate that what is really driving the parties (on one or both sides) is as much raw emotion as it is business considerations. In fact, IP cases without an emotional component are often easier to dispatch of quickly. The thornier ones are those where both sides feel entitled to something — whether it is the right to protect their creation, or the right to tell someone else that what they have created is not really theirs.

Over time, astute IP lawyers learn to triage their cases according to the level of emotion involved. In some ways, that analysis will overlap with an assessment of the value of a particular case. Other times, it won’t. Either way, all it takes is one case where a client with a weak legal claim insists on pushing things to a decision on the merits for an IP lawyer to realize just how potent a driver of disputes emotions can be — especially for those who find themselves representing inventors and creators, or plain old corporate IP owners. Similarly, lawyers on the defense side can sometimes find themselves litigating a case that should have settled long before, simply because the client was offended in some measure by the audacity of the IP owner in making a claim of infringement. Or some other form of offense that makes even the most rational settlement seem like a violation of some critical principle or ideal upon which the client’s entire business ethos rests.

Take a recently filed case that has garnered some media attention since it involves a hit television series, Billions, which airs on Showtime. I am a fan of the show, both as a lawyer and as someone who finds themselves interacting with Wall Street-types on a regular basis. While the portrayals of the lead characters can be exaggerated for dramatic effect, there is a lot that the show gets right in terms of how the legal and finance communities intersect. From its use of hedge-fund lingo to its illustration of the power dynamics with the SDNY’s U.S. Attorney’s Office, Billions has proven adept at portraying the world its characters inhabit with an incisive eye. And according to one complainant, its portrayal of the lead female character on the show, an investment-performance psychologist (who happens to also be married to the U.S. Attorney), borrows too liberally from her own professional exploits, which she had willingly shared with show’s creators in its development phase, in the hopes of receiving an ongoing consulting role on the show.

Yes, the Billions case can be analyzed on a legal level, presenting as it does a thin, if aggressive, right-of-publicity claim. But the case is also far more interesting for the naked emotion at its core, with the plaintiff feeling that promises were broken to her about her ongoing role, and the show’s creators and Showtime viewing her as an opportunist trying to claim outsized credit for her initial contribution to their efforts. In my view, had the promise of a future role never been made, there likely would have never been a lawsuit — making this case about the value and legal effect of that promise. Betrayal is a powerful emotion, and it is clear that both sides of this dispute feel betrayed in some measure. Which suggests it may get to a decision on the merits, unless one or both of the parties can set aside their emotions and drive a settlement.

Considering the role of emotion in IP disputes, it is interesting that IP lawyers are not usually lauded for their emotional intelligence. Which seems counterintuitive, since so much of an IP lawyer’s craft involves sussing out the precise buttons to press (on both their own and the other side) in order to achieve a favorable resolution for their client. In fact, it is often the cold intellectual prowess of IP lawyers that is celebrated, whether in their understanding of the complex technology underlying a patent case, or their appreciation of the artistic prowess of their client’s creative work in a copyright matter. While the latter abilities are surely also hallmarks of successful IP lawyers, there is perhaps opportunity lost when the emotional aspects of IP practice are given short shrift.

First, there is opportunity lost when it comes to training younger IP lawyers when the focus of training before, during, and after IP disputes is limited to the technical and legal aspects of a case. I am, of course, not arguing that training in those areas is not as important as a focus on how to identify and handle the emotional aspects of a dispute. Rather, I believe that the training of IP lawyers is enhanced when at least some attention is given to the emotional elements of a case. Take a case that was won or lost on summary judgment for example. While an effective post-mortem on both sides rightly requires an analysis of the legal reasoning that led to triumph or defeat, that same post-mortem would be much richer if it included an analysis of what emotional components led to the case getting to summary judgment in the first place, as opposed to settling at mediation, or at some earlier juncture of the case, before the full brunt of legal expenses was incurred by both sides.

Second, failure to acknowledge the role of emotion in IP disputes takes some of the satisfaction out of an IP lawyer’s role in resolving them. We all remember our most difficult cases — and clients — and often derive the greatest professional satisfaction when we finally resolve those matters. Many times, the trick to getting to resolution lies not in application of some brilliant legal theory. Instead, it is because an opportunity to shift the emotional dynamic of the case presents itself, inevitably concluding in resolution of the dispute. Experienced IP lawyers recognize those opportunities and are skilled in exploiting them to maximum effect.

Sponsored

Ultimately, IP lawyers must be cognizant of the role of emotion in driving the actions of their clients and adversaries in order to give their best counsel. This obligation is heightened by the privilege we have of working with creative people, who have often invested considerable effort in bringing their intellectual property to life. We must be mindful of their sacrifices and zealous in protecting their interests, while also avoiding unnecessarily aggrieving their opponents in a way that makes a successful resolution of disputes more difficult. It is a challenge, but a rewarding one. Because when emotions are involved, a case’s value can be immeasurable, even if the amount in dispute is not in the billions.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.


Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Sponsored