Let's take a moment to chat about the legal hearin
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Posted On: 11/14/2017 9:37:04 AM
Let's take a moment to chat about the legal hearing on Friday. I want to interject a few thoughts on the case against J&J, because when the company files its 3Q 2017 quarterly report this afternoon or evening, the rest of the week will become a bash and threat fest lead by the usual suspects on the iHub board.
IMO the judge will NOT rule from the bench Friday afternoon. But also IMO the judge HAS made up his mind, and he will speak his mind Friday in open court. He did so last time and it appears that this is his way. He won't directly ask either side to change his mind for him, but there won't be a person sitting in court that won't take the hints, including J&J's counsel.
Before I get back to this discussion, I want to briefly discuss how J&J handles important cases and milestones in these cases. J&J typically brings four attorneys to these important matters. They will be lead by Greg Diskant, a late 60s fellow who is well known as a guy who trashes his opponent's client without trashing his legal adversary. Mr. Diskant has not once shown, in 7 years, an understanding of the technical factors involved in any of the four law suits.
Mr. Diskant will have two assistants. Eugene Gerlenter will be second chair and his role will be to pass Mr. Diskant notes during his presentation. This is a tried and true legal working plan, where Gerlenter's job is to keep Diskant on point. This has not once worked in the past. The third member of the team will be Charlie Marshall. Charlie started out as an associate at Mr. Diskant's firm, but just showing how time marches on, Mr. Marshall left Diskant's firm 5 years ago and started his own NYC firm. Marshall's job is to run the AV equipment for J&J's presentation. It is also rumored that Marshall writes all of the pleadings that Diskant puts his name on.
The fourth member of the J&J team is a fellow named Timmons. Timmons is the lawyer in J&J's chief counsel's office who oversees all of Lifescan's litigation (and there is a lot of it). Timmons is there to keep an eye on Diskant and to determine whether J&J is fighting an uphill battle. Timmons will walk out of the Las Vegas hearing to make a report to J&J's chief counsel as to what to expect now that the oral arguments have concluded. Timmons also sizes up the trial judge to determine whether the fellow can be manipulated. A fifth member of the team is the J&J local counsel who attends because all of the other J&J lawyers are not registered to practice law in Nevada.
J&J will probably not bring its usual crew of 10-15 newbee lawyers who typically are at important hearings just to fill the courtroom. But, but but... there may be another attendee lawyer. In the past J&J's chief counsel has sent an emeritus lawyer to sit "at the table," especially if they believe the ruling can go either way. This emeritus lawyer sits there and scowls, but he reports directly to the J&J chief counsel and CEO. His job, if he is there, is to recommend paying off DECN to get rid of them. Make no mistake, and don't let jailbird Johnny_C or any of the other Johnnys or the iHub crew convince you that this is just another hearing. This hearing and its outcome is as serious as a heart attack.
DECN will be represented by three lawyers, the case managing partner, the trial counsel and a local guy. Over the past 7 years these guys have become the creme de la creme of diabetic test strip technology litigation. They have successfully won at District Court, the Federal Court of Appeals, the USPTO court, and finally the U.S. Supreme Court. They are not shrinking violets.
The hearing is scheduled to begin Friday at 10am, and I believe the judge intends to go to lunch around noon, finished with this case for the day. The lawyers for both sides will be prepared for a pitched battle, and IMO the judge will have none of it. Prepared presentations will be replaced by an opening statement by the judge followed by questions by the judge to both sides. These questions will tell both sides where the judge stands. The statistics on this court are that Summary Judgments are not ruled on quickly, but in this case since J&J presented no new facts in its pleadings (vs. the Motion to Dismiss that they lost in March 2017), the judge may rule well before the holidays, but both sides will know exactly where they stand 10 minutes after the "good mornings." The hearing will end with the judge telling both sides what comes next. If he says "have the parties tried out mediation" that means that DECN won but it is not a case crushing victory. If the judge says "lets mediate this with Magistrate so and so before I rule" that means DECN won big. I no longer believe, and I may be wrong, that the judge will have no comment and allow the case to be a "pick em" based on his written ruling. It doesn't appear to be the judge's style.
As I write this I still am of the opinion that J&J's trial counsel Diskant believes he will win Friday. Or I should say, he strongly hopes he has a winning argument. He's a guy who is about a year or two from retirement, so I doubt he cares what Mr. Timmons (a former partner of his) or the J&J lawyer emeritus believe.
There will be no pre-hearing courthouse steps settlement. And I am going to flip a coin this afternoon. I may fly to Vegas and attend the hearing. The fact that this important hearing is on a Friday may and probably will sway me.
IMO the judge will NOT rule from the bench Friday afternoon. But also IMO the judge HAS made up his mind, and he will speak his mind Friday in open court. He did so last time and it appears that this is his way. He won't directly ask either side to change his mind for him, but there won't be a person sitting in court that won't take the hints, including J&J's counsel.
Before I get back to this discussion, I want to briefly discuss how J&J handles important cases and milestones in these cases. J&J typically brings four attorneys to these important matters. They will be lead by Greg Diskant, a late 60s fellow who is well known as a guy who trashes his opponent's client without trashing his legal adversary. Mr. Diskant has not once shown, in 7 years, an understanding of the technical factors involved in any of the four law suits.
Mr. Diskant will have two assistants. Eugene Gerlenter will be second chair and his role will be to pass Mr. Diskant notes during his presentation. This is a tried and true legal working plan, where Gerlenter's job is to keep Diskant on point. This has not once worked in the past. The third member of the team will be Charlie Marshall. Charlie started out as an associate at Mr. Diskant's firm, but just showing how time marches on, Mr. Marshall left Diskant's firm 5 years ago and started his own NYC firm. Marshall's job is to run the AV equipment for J&J's presentation. It is also rumored that Marshall writes all of the pleadings that Diskant puts his name on.
The fourth member of the J&J team is a fellow named Timmons. Timmons is the lawyer in J&J's chief counsel's office who oversees all of Lifescan's litigation (and there is a lot of it). Timmons is there to keep an eye on Diskant and to determine whether J&J is fighting an uphill battle. Timmons will walk out of the Las Vegas hearing to make a report to J&J's chief counsel as to what to expect now that the oral arguments have concluded. Timmons also sizes up the trial judge to determine whether the fellow can be manipulated. A fifth member of the team is the J&J local counsel who attends because all of the other J&J lawyers are not registered to practice law in Nevada.
J&J will probably not bring its usual crew of 10-15 newbee lawyers who typically are at important hearings just to fill the courtroom. But, but but... there may be another attendee lawyer. In the past J&J's chief counsel has sent an emeritus lawyer to sit "at the table," especially if they believe the ruling can go either way. This emeritus lawyer sits there and scowls, but he reports directly to the J&J chief counsel and CEO. His job, if he is there, is to recommend paying off DECN to get rid of them. Make no mistake, and don't let jailbird Johnny_C or any of the other Johnnys or the iHub crew convince you that this is just another hearing. This hearing and its outcome is as serious as a heart attack.
DECN will be represented by three lawyers, the case managing partner, the trial counsel and a local guy. Over the past 7 years these guys have become the creme de la creme of diabetic test strip technology litigation. They have successfully won at District Court, the Federal Court of Appeals, the USPTO court, and finally the U.S. Supreme Court. They are not shrinking violets.
The hearing is scheduled to begin Friday at 10am, and I believe the judge intends to go to lunch around noon, finished with this case for the day. The lawyers for both sides will be prepared for a pitched battle, and IMO the judge will have none of it. Prepared presentations will be replaced by an opening statement by the judge followed by questions by the judge to both sides. These questions will tell both sides where the judge stands. The statistics on this court are that Summary Judgments are not ruled on quickly, but in this case since J&J presented no new facts in its pleadings (vs. the Motion to Dismiss that they lost in March 2017), the judge may rule well before the holidays, but both sides will know exactly where they stand 10 minutes after the "good mornings." The hearing will end with the judge telling both sides what comes next. If he says "have the parties tried out mediation" that means that DECN won but it is not a case crushing victory. If the judge says "lets mediate this with Magistrate so and so before I rule" that means DECN won big. I no longer believe, and I may be wrong, that the judge will have no comment and allow the case to be a "pick em" based on his written ruling. It doesn't appear to be the judge's style.
As I write this I still am of the opinion that J&J's trial counsel Diskant believes he will win Friday. Or I should say, he strongly hopes he has a winning argument. He's a guy who is about a year or two from retirement, so I doubt he cares what Mr. Timmons (a former partner of his) or the J&J lawyer emeritus believe.
There will be no pre-hearing courthouse steps settlement. And I am going to flip a coin this afternoon. I may fly to Vegas and attend the hearing. The fact that this important hearing is on a Friday may and probably will sway me.
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