There was one more thing Lewis’ attorney never thought to tell him, this one wasn’t a legal opinion or gut feeling, it came from the front page of the New York Times just before the case began. Here’s the headline:
Judge's Decisions Draw Notice for Being Conspicuously Late
Their judge had the worst late record of any of the "1,500 active and senior Federal District Court judges and magistrates in the United States." The worst.
It would not take a legal genius to know what was going to happen to every pending case in the man's court after that – warp speed.
The defense submitted a brief that mischaracterized Lewis' book, got character names wrong, and mixed-up plot lines - perhaps on purpose to obfuscate the parallels. Lewis’s attorney was overwhelmed and, obviously, under a time crunch. He did not refute any of it, flustered, he just regurgitated their argument and threw it back on them.
At some point, the judge asked for and accepted briefs, then promised to read both books in depth before ruling. He reached a decision in – literally - record time: Lewis lost.
Shortly after the ruling, Lewis ran the judge's lengthy opinion through plagiarism-detection software developed by a physics professor at the University of Virginia. It turned out that the decision had been copied virtually word for word from the defendants' filings . . . without attribution.
That’s when Lewis filed an appeal. That’s where Vanity Fair caught up to the case and noted (this is where we started) his lawyer’s performance:
"On April 11, Lewis Perdue sat on a bench in a gallery on the 17th floor of Manhattan's Thurgood Marshall United States Courthouse and did his best to contain himself. Before him, a panel of judges from the Court of Appeals for the Second Circuit debated his future. As Perdue's lawyer launched into a tortuous and somewhat odd explanation to the court about how, as a science-fiction buff, he was a big fan of Frank Herbert's "Dune" series, Perdue tried in vain to suppress a sigh. Then he began to rock back and forth." ~ Vanity Fair, July 2006
The only thing poor Lewis accomplished over years of litigation are lessons for the rest of us:
- Free legal advice/help/opinions is worth exactly what it costs. No one does a copyright case on contingency unless the case is a clear winner. Such as 'no possible defense; he copied my 450-page book and just slapped a new cover and his name on it' uncontested layup. With a rich defendant. In other words, never.
- Anything less than that requires a serious retainer after a thorough 'here's all the things that can and probably will go wrong' discussion/warning. (And those are cases we won't take because we STOP smart people from making stupid decisions when getting divorced.)
- Only go to attorneys who know their field. Intimately.
- Breaking precedence is big news because it is! If it was a normal part of any given court case it would not be news at all. It doesn’t happen often. It takes a rare case to do so. It should never be promised.
- You really don't want your 'day in court' for any number of reasons . . . with one most certainly being that you never know what the judge is bringing to the bench with him or her. And while fairness and justice sound objective, those standards are applied by subjective human beings in court.
Poor Lewis may never have gone through any of this if he had hired an attorney who knew the field. Intimately. That attorney would have had a long, honest, heart-to-heart with Lewis before doing anything. Then they would never have tipped off the publisher by threatening a suit via an almost utterly bogus, certainly premature cease and desist letter.
At least Lewis didn’t have to pay the publisher's legal fees.