Yes, a federal judge is telling lawyers in his courtroom what they can and cannot say — but it is not as out there as you might think. It’s not some wild First Amendment triggering regulation on speech as much as it’s trying to ensure there’s no prejudicial language used in front of the jury — and it’s increasingly common, particularly in patent cases where phrases like “pirates,” “bandits,” or “trolls” are frequently banned.
In the most recent example of no-no words, Eastern District of Texas judge Rodney Gilstrap barred the use of “yahoos” and “fake news” in a patent infringement retrial between rival garage-door opener makers. In the first trial, one of the lawyers told the jury, “You know, I grew up about 15 miles from here, and I know a lot of you all are from East Texas. But they filed this suit in Marshall, Texas, because they think we are yahoos in East Texas; they think we won’t use our common sense.”
Now, as reported by Bloomberg Law, that kind of language is out:
Before the trial began this week, Gilstrap granted a motion barring any reference “to the jurors, court, or citizens constituting the jury pool as ‘yahoos’ or other similar derogatory references.” He further instructed the lawyers to “not make reference to the intelligence of the jury, the Court, the population of the Marshall Division, or the population of the Eastern District of Texas.”
But those aren’t the only words/phrases that are out:
Gilstrap ultimately ruled that “yahoos” was derogatory and shouldn’t be used, and that two other terms, “patent factory” and “fake news,” were also off limits—though the parties could use the term “frivolous” in their closings to attack the other sides’ arguments.
Looks like the lawyers will have to get creative in their attacks on the opposing side’s arguments.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.