Sharp Rubber Duck

Stupid, Lawyers must talk to each other, and eat too

September 8, 2006

Judge orders attorneys to sit down and eat

By Courtney Flynn, Chicago Tribune

Hear ye, hear ye! The Honorable Pendleton Gaines hereby orders that the attorneys in the case of the intellectual property dispute go to lunch.

Yes, lunch.

Seeking to foster a discussion about the lawsuit, the Arizona superior court judge issued a July 19 ruling in which he mused about the benefits of a good meal accompanied by good conversation.

He even offered possible dining locations and laid down the law about leaving a tip.

“The Court suggests that serious discussion occur after counsel have eaten,” Gaines wrote in a footnote to his ruling. “The temperaments of the Court's children always improved after a meal.”

Gaines' ruling is circulating through legal circles and the Internet, generating laughs among attorneys and sparking people from Idaho to England to contact lawyers for the plaintiff and defendant.

“I didn't realize the judge had such a good sense of humor,” said David Rosenbaum, an attorney for the defendant. “I think all sides got a kick out of it.”

Gaines' order came in response to a formal request by an attorney that the two sides talk face to face about some of the issues involved.

In the 2003 case, Physician's Choice of Arizona, a Scottsdale, Ariz.-based company that develops skin-care treatment products, sued Mickey Miller, who used to work for the firm. Physician's Choice alleges that it owns patent rights on products that Miller helped invent, attorneys said.

It was an ordinary court case until things started to flare up.

“The (ruling) is a jewel in and of itself,” Glenn Ostlund, an attorney for Miller, said in a telephone interview last week. “It's even better if you know the history.”

As the case moved through the discovery phase, David Selden, a Phoenix attorney for Physician's Choice, said he wanted to meet with Ostlund to talk about the case.

“In this day and age of voice mail and e-mail, so much information is in short snippets,” Selden said last week during a telephone interview. “What this case needed was for the attorneys to sit down and discuss it at length.”

But Ostlund said he had been waiting for other documents from Selden and wanted him to produce that paperwork and any new information before he would agree to meet for lunch.

“I said, 'Give me the stuff you owe me and then we'll have lunch,' ” Ostlund said.

Of course, nothing proposed in legal jargon sounds that simple. Selden filed a motion May 19 asking Gaines to “compel defendant's counsel to accept plaintiff's counsel's long-standing invitation for lunch so that defendant's counsel will be forced to communicate with plaintiff's counsel for at least as long as it takes defendant's counsel to eat lunch.”

Ostlund then filed a May 30 response to Selden's motion, noting that he was still waiting for information from Selden but would “be happy to have a working lunch,” adding, “We would love to have lunch at Ruth's Chris (Steak House) with/on David (Selden).”

Gaines issued his ruling July 17, granting Selden's request and noting that “the court has rarely seen a motion with more merit.”

Gaines, who declined to comment in light of the pending litigation, noted in his ruling that he “searched in vain” to find case law to support it, so had to rely on the wisdom of writers.

“Conversation has been called 'the socializing instrument par excellence' (Jose Ortega y Gasset, 'Invertebrate Spain') and 'one of the greatest pleasures in life' (Somerset Maugham, 'The Moon and Sixpence'),” Gaines wrote.

He suggested lunch locales “within easy driving distances” of both counsels' offices.

He did not suggest Ruth's Chris, however, noting in a footnote: “Everyone knows that Ruth's Chris, while open for dinner, is not open for lunch.”

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