Attorney Tip #7 – Be Empathetic

Most attorneys will feel empathy for their own when they read a story about a BigLaw partner getting sued for malpractice over a botched patent application.  But LPR challenges those attorneys to see the situation from the client’s perspective.

USPTOsealDebra MacKinnon, owner of Zephyr Inc., sued her patent attorney, Bernard Codd of McDermott Will & Emery, claiming that the patent application he filed on her company’s behalf listed incorrect product dimensions despite being provided with accurate product diagrams, and as a result, other companies are selling knock-offs without having to pay royalties.  According to the August 19, 2014 New York Daily News article, Silicone bra insert inventor sues former lawyer for flawed patent-filing that has cost her millions: court papers, Ms. MacKinnon discovered the mistake when she hired another law firm to sue Victoria’s Secret and others for selling knock-offs of her product.

According to her current attorney, Joseph Gioconda, in addition to the erroneous product description, Mr. Codd waited until the day before the patent application was due to obtain Ms. MacKinnon’s approval for filing the application.

She is not a lawyer or an engineer.  She was paying top dollar to McDermott and relied on them to get it right.

Although new patent lawyers reportedly prepared a revised application, Mr. Gioconda claims that the mistakes in the original application may prevent restoration of royalty rights.  A McDermott spokesperson stated it was “unfortunate” that the client filed the lawsuit, and they are “confident that the firm will prevail.”

In light of what, at this point without the benefit of McDermott’s side of the story, appears to be a straight forward case of malpractice, LPR submits that lawyers should try to see this situation from Ms. MacKinnon’s perspective.  What if you were paying $860 an hour for a well-respected law firm to prepare a patent application with the detailed diagrams you gave them, wouldn’t you expect an accurate patent application filing?  And wouldn’t you expect more than a last-minute request for approval?  And should it be your responsibility, as the client, to double-check that your lawyer correctly described your product dimensions when you supplied them in the diagram specs?  And if this lawyer botched the application and you lost your corner on the market and any royalty rights to the tune of about $6 million, wouldn’t you seek restitution from the law firm in the form of a malpractice case?

Perhaps if more attorneys were empathetic to their clients and tried to see things from their clients’ perspectives, they could view their own attitudes and actions in a brighter light.  More empathy for your clients can result in better attorney/client relationships – and that’s a win-win.


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