When we last spoke in 2021, you described seeing an increase in ‘uncivil conduct’ by IP attorneys. How has this been a detriment to effective legal advocacy in the sector? The seemingly increasing levels of incivility in the profession usually impacts legal advocacy in a negative manner. What typically happens is that conflict between companies becomes conflict between the advocates. Instead of focusing on the strengths and weaknesses of the case, attorneys focus on bullying or intimidation litigation tactics. This behaviour typically occurs during the discovery phase of a case, leading to more motion practice about issues not germane to the merits of the case. Clients end up paying higher attorney fees for having to fight about discovery matters that are, often, otherwise unnecessary. Settlement discussions became more challenging in which to engage. In trademark cases, creativity in resolving conflict for consumers’ benefits is a key component to settlement. However, when the case goes from the likelihood of confusion issues to a series of senseless motions, a company’s desire to settle may be diminished. Does the IP sector still struggle with this, or has there been a shift back towards civility? I am thankful that over the past couple of years, I have experienced less and less uncivil conduct by opposing counsel in litigation. It could be that the pandemic has adjusted attorney views of client priorities and their own personal priorities. 76 LAWYER MONTHLY APRIL 2023 The Current State of Intellectual Property Law Thought Leader The past few years have seen significant upheaval for intellectual property law, alongside all other facets of the legal world. We hear this month from highly experienced IP litigator Julie Katz on the COVID-19 pandemic, changing attitudes towards civility in IP law and other developments shaping the profession in 2023.
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