In Commil USA, LLC v. Cisco Systems, Inc., (ED TX, Dec. 29, 2010), a Texas federal district court judge has granted plaintiff a new trial in a patent infringement case because of remarks made during trial by defendant's counsel appealing to possible anti-Jewish prejudices of jurors. The jury awarded plaintiff $3.7 million on its direct infringement claims. The new trial was awarded on the issues of indirect infringement and damages. As recounted by the court:
Jonathan David, one of the owners of Commil ... is Jewish. While cross-examining Mr. David, Cisco's counsel inquired whether Mr. David had met with Nitzan Arazi, one of the inventors .... Mr. David responded affirmatively, explaining that they had had dinner at a barbeque restaurant, to which Cisco's counsel inexplicably responded: "I bet not pork."
When the court asked Cisco’s counsel to explain the relevance of his comment, Cisco's counsel admitted that it had no relevance to any issue in the case.... Thereafter, Cisco's counsel apologized to the witness, and the court gave a curative instruction.
Although Cisco's counsel acknowledged that his pork comment was inappropriate, he nevertheless proceeded to make further remarks regarding religious practices. Cisco's counsel’s closing argument began:
Ladies and Gentlemen of the Jury, you are, in this case, truth-seekers.... You remember the most important trial in history, which we all read about as kids, in the Bible had that very question from the judge. What is truth?
Cisco's counsel was referring to the trial of Jesus, which was presided over by Pontius Pilate. This argument, when read in context with Cisco's counsel's comment regarding Mr. David and 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."American Lawyer yesterday reported on the decision.