Apple v. Samsung: One Angry Man?

December 20, 2012

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) ____________________ 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. As I said in my post on that case, “trials are a virtual waiver landmine.” Now, a waiver in Apple v. Samsung may outdo the cost of the waiver in the Microsoft case by $700 million. In Apple v. Samsung a California federal jury awarded Apple over $1 billion for infringing patent and trade dress rights associated with the Apple iPhone. Following trial the jury foreperson, Velvin Hogan (pictured above), became a media star, granting generous interviews to the press. Some…

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Samsung – “Attorney’s Eyes Only” for Naught

August 8, 2012

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? If you won’t, I’ll file a motion . . ..”). And so on. However, when the case gets to trial all bets are off.  Judges are loath to clear the courtroom every time confidential documents or topics are discussed. They don’t want to…

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

July 13, 2012

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.  However, filing the correct pre-verdict motion is not the end of the matter. FRCP 50 requires that the motion be renewed within 28 days after the court enters judgment.  However, a post-judgment JMOL motion cannot raise an issue that was not presented in the prejudgment motion. Belk v. Meyer…

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Jury Consultants post – Rajaratnam: Are They Worth It?

May 26, 2011

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.  Mr. Rajaratnam”s lawyers undoubtedly concluded that jury consultants might help, and couldn’t hurt.  The decision to utilize jury consultants probably was a prudent step in minimizing future regret.  (“If only we had used a jury consultant our client might not have been convicted! Darn.”). Trial lawyers have long been deeply divided on the question of whether jury consultants are “worth it.” Some of the consultants’ recommendations in this case  (as reported in the WSJ), are so obvious that it…

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Trial Practice: If You Can’t Fix It, Feature It (or at least mention it before the other side does)

May 14, 2011

One of the oldest, most hoary rules of the trial practice is this: if you have a bad fact, reveal it to the jury before your opponent does.  Otherwise, the theory goes, the jury (or judge) will think you are trying to hide it from them, and will count it against you. Worst case, you will lose credibility as an advocate – if this lawyer will try to hide a significant fact from me this time, what else is he or she hiding?  Why should I trust this attorney? Disclosing the bad fact is OK, but even better, figure out some way to turn the “bad” fact to your advantage – “if you can’t fix it, feature it.”  For example, “my client was convicted of criminal fraud ten years ago.  We want you to know about this, jurors, and to know that he has paid his price to society, and been free of any allegations of wrong doing since.  Since then he has married, he is the father of triplets, and he hasn’t gotten into trouble since.  We all make mistakes – don’t hold this one against him.”

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