Lawyers Should Lighten Up to Serve Their Clients Better

Years ago, as a young lawyer just starting to practice, my sister asked me to intervene in a dispute she was having with the management company that owned her apartment. The company was refusing to return her security deposit, despite the fact that the apartment was pristine when she left (I know, since I helped move her out). In addition, the landlord—who fancied himself a bit of a comedian—had mildly insulted her when she called to complain. I was apoplectic. Strapping on my newly minted legal six-guns, I vowed this outrage would not stand.

I wrote an angry, nay vituperative, letter to the management company, reciting fact and law, questioning their motives, threatening defamation and anything else I could think of. I was confident in both the law and the ultimate rightness of my cause.

The letter I received in response, however, was enlightening on a number of levels. It has been a few years, of course, but I recall it read something like this: “We did not know who Ms. Haggerty was until now, but thanks to your letter, we’re going to do everything we can to make her life miserable.”

Needless to say, she never got her security deposit back. And I learned a valuable lesson that I now use daily, as both a lawyer and a consultant to companies on communicating during high-profile lawsuits: Lighten up! Sometimes you serve your client and their ultimate legal and business goals better that way.

I was reminded of this while reading a recent article in The AmLaw Litigation Daily about Louis Vuitton Malletier S.A, the well-known maker of luxury goods, particularly handbags and luggage. A knock-off of one of their bags had appeared in the popular 2011 movie The Hangover: Part II. Despite the fact that the counterfeit LV travel bag was a fake—the character played by Zach Galifianakis sanctimoniously refers to the bag as a “Lewis Vuitton”—Louis Vuitton sued Warner Bros. for trademark infringement.

The company’s lawyers insisted in federal court in Manhattan that the presence of the bag created “customer confusion.” The judge in the case did not agree, dismissing the suit and stating that the use of the counterfeit bag in the movie was noncommercial speech protected by the First Amendment. To the surprise of no one, I’ll bet.

And that’s the point. Few disagree with the importance of aggressively protecting a company’s trademark, but lawyers and their clients need to also realize trademarks are merely one component of a company’s overall brand. As much as trademarks, copyright, and other intellectual property, reputation is what makes a brand. And while no company wants to have its brand diluted, I would argue reputation trumps trademark in many, many cases—particularly when dealing with luxury goods where the perception of exclusivity and cachet forms the basis of brand equity. Louis Vuitton can afford a satirical cameo of a counterfeit bag in a hit movie; it can less afford to seem uptight and uncool in the eyes of its customers.

So lawyers and other advisors who are counseling companies need to be conscious of the broader effect of their aggressive legal tactics in the court of public opinion, even as they are working to aggressively defend the company’s interests where appropriate. Occasionally that requires . . . well, learning to take a joke.

As in my landlord-fighting example, a lighter touch would have likely served the client’s interests better in the Vuitton case. Such nuance can sometimes be lost on hard-nosed, take-no-prisoners litigators for whom “see you in court” is often the knee-jerk response to every client problem. As the saying goes: when you own a hammer, every problem is a nail. (Indeed, Louis Vuitton has been criticized in the past for its overly aggressive trademark protection efforts.)

Jenner & Block’s Andrew Bart, quoted in the AmLaw article, summed it up well when discussing the difficulties with Vuitton’s approach:

Like all trademark holders, Bart said, Louis Vuitton has to find the “delicate balance” between fighting to protect its trademarks and being overly aggressive. “It’s a challenge to a lawyer to find that right balance,” Bart says.

Well put. I am reminded of another trademark case, this one going back nearly a decade, that spawned what I have come to call my “Al Franken” rule: just because you can assert a legal claim doesn’t mean you should.

In 2003, comedian (and now politician) Al Franken was sued by the Fox News channel over his book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Fox’s lawyers argued that the phrase “Fair and Balanced” was its trademarked property. The lawsuit was quietly withdrawn after an adverse judicial ruling and a torrent of negative media coverage made the network look downright silly.

Although the lawsuit was gone, the damage in the court of public opinion went on. Franken’s book debuted at the top of non-fiction bestseller lists and stayed there for quite some time. And today, of course, he is a U.S. Senator.

It’s a lesson worth remembering, whether as lawyer or client, the next time a real or perceived affront to your brand makes you want to strap on those legal six-guns yourself.