Judge Orders New Trial in Wake of Cisco Counsel's Allegedly Anti-Semitic Remarks

Would federal court jurors in Marshall, Tx., have awarded Commil USA more than $3.7 million in patent infringement damages if it hadn't been for allegedly anti-Semitic comments made by defense counsel for Cisco Systems? We may find out, now that Judge Charles Everingham IV, who presided over the case, has granted Commil's motion for a new trial.

As we've reported, the brouhaha began during the May 2010 trial, when Cisco local counsel, Otis Carroll of Ireland, Carroll & Kelley, was questioning Commil's owner, Jonathan David, who is Jewish and lives in Israel. After David testified that he had dined with one of the patent inventors at a Marshall barbecue joint, Carroll responded, "I bet not pork."

That comment led Judge Everingham to admonish Carroll in front of the jury. Carroll admitted the pork reference was irrelevant and later apologized to David, the jury, and Commil's lawyers at Sayles Werbner.

At the end of the weeklong trial the jury found that Cisco had directly infringed Commil's patent, but awarded only $3.7 million in damages--a fraction of the $57 million Commil originally sought. Sayles Werbner promptly filed a motion for a new trial on the issues of indirect infringement and damges, citing not only Carroll's pork comment, but also a portion of the Cisco lawyer's closing argument, in which Carroll invoked the trial of Jesus Christ and asked jurors to "remember the most important trial in history, which we all read about as kids, in the Bible."

In Cisco's motion opposing Commil's request for a new trial, the company's lawyers from Simpson Thacher & Bartlett (who also represented Cisco at trial) argued that Carroll's comment was simply an "off-the-cuff remark" that Commil was leveraging to create "the illusion of some kind of anti-Jewish conspiracy by Cisco."

Judge Everingham disagreed. In his four-page Dec. 29 opinion and order granting Commil's motion for a new trial, the judge cited both Carroll's pork remark and his closing argument reference to Jesus's trial at the hands of Pontius Pilate. "This argument, when read in context with Cisco's counsel's comment regarding Mr. David and [patent co-inventor] Mr. Arazi's religious heritage, impliedly aligns Cisco's counsel's religious preference with that of the jurors and employs an 'us v. them' mentality--i.e., 'we are Christian and they are Jewish,'" the judge ruled.

Commil lawyer Richard Sayles told us he was "obviously pleased" with the judge's ruling. He called the comments cited by the judge "very regrettable," though he defended Carroll as an excellent lawyer. We asked Sayles if he's worried the next jury might award Commil even less than $3.7 million, or possibly nothing at all. "There's always that risk, but I think we'll get a better result next time around," he said.

Simpson Thacher's Jeffrey Ostrow, who authored Cisco's motion opposing a newtrial, declined to comment on Judge Everingham's ruling. Carroll didn't respond to a message seeking comment.