Trials

Apple v. Samsung: One Angry Man?

by Lee Gesmer on December 20, 2012

Apple v. Samsung: One Angry Man?

Juror #8: It’s always difficult to keep personal prejudice out of a thing like this. And wherever you run into it, prejudice always obscures the truth. 12 Angry Men

In this business you got fifty ways you’re gonna screw up. If you think of twenty-five of them, then you’re a genius… and you ain’t no genius. Body Heat (“G”-rated version of quote from the movie)

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If you’ve noticed a lawyer with a paranoid, haunted look, and you’re wondering why, the answer may be that the lawyer is thinking, “what I have forgotten? Having a waived something I shouldn’t have?” The last time I wrote about the lawyer’s nightmare of waiver the waiver may have ended up costing Microsoft $300 million. In that case, i4i’s patent suit against Microsoft, Microsoft’s appeal of damages was made more difficult  by its failure to move for judgment as a matter of law on the issue.… Read the full article

Despite what lawyers may promise their clients, lawyers cannot guarantee confidentiality in litigation.

Much time and effort is spent negotiating “protective orders” (a stipulation filed by the parties and “entered” as an order by the court).  Usually the “PO,” as its called, provides for three designations: “attorney’s eyes only,” “confidential” and non-confidential.  “Attorney’s eyes only” usually covers attorneys and experts retained by a party, but not the executives or employees of the party itself.

Lawyers work hard to make sure they follow the dictates of a PO.  Most embarrassing for lawyers is when they mistakenly “under-designate” a group of documents (“oops, those documents should have been attorney’s eyes only, not simply confidential.  Can we agree to redesignate them?  You haven’t shown them to your client yet, have you?”). Usually this isn’t a problem (after all, there but for the grace of God …), but sometimes it is, requiring a motion and decision by the judge on how to treat the “mistake.”

Not infrequently, one side will claim the other side has “over-designated” documents: “that shouldn’t be attorney’s eyes only, will you agree to redesignate it a confidential?… Read the full article

Procedural Errors During Trial Cause Trade Dress Defendant to Forfeit Rights on Appeal

I’ve written before about waiver.  As I said back in July 2008, the “one thing that scares the bejesus out of trial lawyers is waiver.”  Waiver is a constant risk in litigation, but nowhere is it more of a risk than during trial.  Failure to object to improper jury instructions, or failure to follow the proper procedure required for judgment as a matter of law (“JMOL” in lawyer parlance) can constitute a forfeiture, and preclude the right to raise the omitted issue on appeal.

To make matters worse, these potential waivers come when the fog of war is at its worst: after days or weeks of sleep-deprived trial stress the lawyers have to file a written motion for JMOL just before the jury is handed the case. A lawyer may know that the failure to do this will forfeit the right to raise the missed issue on appeal, but at that point the lawyer is frantically preparing for closing argument and dealing with the countless issues that come up at the end of trial, and the motion may be forgotten or not thoroughly prepared.  … Read the full article

Jury Consultants post - Rajaratnam: Are They Worth It?

I was interested to read the The Wall Street Journal’s report that Raj Rajaratnam spent $300,000 on jury consultants before the trial in which he was convicted on all 14 counts of securities law violations.  As my teenage daughter might say, “fail”!

OK, I admit that I’m being a bit unfair.  From everything I read in the press regarding this trial it would have been astounding if Mr. Rajaratnam had been acquitted. After all, the government had something quite rare in insider trading cases: audiotapes of the defendant, convicting him with his own words.  A jury consultant “fantasy team” comprised of Sigmund Freud and a certified psychic probably wouldn’t have been able to help in this case.

Nevertheless, it’s no great surprise that Raj’s attorneys chose to use jury consultants in this case.  $300,000 was a drop in the bucket given the “spare no expense” approach taken by defense counsel in this case. … Read the full article