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(323) 652-9451 - LABloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor. Undoubtedly future jury consultants will anchor entire PhD theses on this trial. I don’t pretend to have the education and experience to do any kind of in-depth analysis. But a few interesting points can be quickly gleaned from the interview.
Takeaway Number 1: Vel is smart. But not just intelligent or wise. He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial. According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories. He holds patents and has been a member of the Silicon Valley tech community for over 30 years. I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers). He said in the interview that the jurors were “inundated” with evidence. Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.
On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case. Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations. He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone. If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem. Why?
Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors. I speculate that it took the other jurors no time at all to select Val as their foreperson. They knew from voir dire that he was a techie. They probably paid attention to his expressions and slightest comments throughout the trial. If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important. He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues. Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been. I suspect this was particularly true because I read about (and Vel Hogan alluded to) Judge Koh’s frustrations with the lawyers for both sides throughout the trial. The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial. Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.
Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate. He alluded during the interview to an “Aha” moment he had one night during the deliberations. Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor. But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art). He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly. I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision. All that remained was for Vel to explain his own reasoning to the others.
Takeaway Number 4; The jurors worked in a systematic fashion to reach their conclusions. Several comments during the interview suggested that the deliberations were indeed deliberate. They addressed the “simplest things first.” If they hit a bump in the road, it would not derail their progress. Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations. In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.
The interview is worth watching. If I’ve mis-paraphrased Vel’s comments, please let me know. I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.
In his book, Litigation, Professor James McElhaney laments the fact that civil litigators are horrified at the prospect of a blind cross-examination. As a result, he argues, “[e]very year we spend millions of dollars on needless depositions of ‘witnesses’ who have little to say and nothing to add about the cases in which they would never be called to testify anyway.” But we depose them, he suggests, because we’re scared to death of asking a question to which we don’t know the answer.
In Litigation, he provides some suggestions to civil litigators who, despite their best efforts, find themselves in a blind cross-examination situation. One of these, which he terms “Duck facts,” I particularly like.
Duck facts refer to things for which you don’t need proof. “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.” The classic example of this is where the witness tries to testify to something that makes no sense at all. McElhaney’s example is pretty good:
“Q. You say Schultze didn’t throw the bowling ball at Malone?
A. No way. He just dropped it. It was an accident.
Q. So Schultze just dropped the bowling ball?
A. That’s right.
Q. And then it just rolled onto Malone’s foot?
A. That’s right.
Q. Uphill?”
For those of us who continue the practice of deposing every conceivable witness, practicing duck facts questions, and looking for duck fact opportunities will surely sharpen our skills. I keep waiting for that case where the client forbids me from conducting any pretrial depositions and forces me to go to trial “cold.” I’ll get to practice my blind cross skills in real-time.
In an August 3rd profile of high-end family law practitioners Daniel Jaffe and Bruce Clemens, the Los Angeles Daily Journal quoted these lawyers as citing five important areas for litigators:
“A lawyer has to know people, know financial issues, know the law, know how to try a case and know how to settle a case. . . It seems obvious, but there are very few lawyers who have high skill levels in all five. If you don’t have all five and the other side does, your client is at a disadvantage.”
Does your lawyer have all five? I like to think I’m solid on four of them, but complex financial issues–for which an accountant would be required anyway–may not be my forte. Of course I don’t practice family law.
Learn MoreI cut my teeth as a young lawyer doing almost exclusively automotive product liability defense. What always amazed me, particularly in cases involving extreme tragedy (death, disfigurement, paralysis), was how the automobile manufacturers took these risky cases to trial–and won! How was it possible to convince a jury to look beyond the tragedy and extreme suffering, consider the evidence about the design of a crucial component, understand that evidence, and return a verdict for the manufacturer? Particularly puzzling for me was the fact that, as we neared trial, even I still did not completely understand the technology, and I was a reasonably educated person who had been living with the case for several months.
A very distinguished trial lawyer answered this question during a pretrial presentation to our client of one particularly challenging case. He said that, in his experience presenting these cases to juries (and mock juries) all across the country, then debriefing the jurors after trial, it is clear that much of the technical nuances escape most jurors. No amount of careful teaching with brilliant demonstrative exhibits can make a person with a high school education or less, who has never worked in the automotive industry and, frankly, doesn’t care much about cars at all, understand a component, and comprehend why a company chose design A over design B.
What does matter to these jurors, he said, is seeing the lengths to which the manufacturer went to understand what occurred and how the plaintiff suffered her injury. If something failed, jurors like to understand how and why it failed, and particularly why a safer alternative design wasn’t available or why the design advocated by the plaintiff’s expert wouldn’t work or would have produced the same (or even worse) result. This is why it’s so extremely expensive to take these kinds of cases to trial, particularly when it takes one or more full-fledged crash tests, using identical automobiles, to understand exactly what happened.
A corollary is that jurors appreciate learning how hard the manufacturer worked, and how carefully the component was tested, to assure that the car was as safe as possible for the driver and her passengers. To the extent this can be woven into a story, with witnesses who do not drone on for days, the chances of keeping jurors awake to hear the ending improves. I like to think this principle can be equally applied to any context in which jurors are going to be asked to evaluate highly technical evidence. It becomes less about how or why something works, and more about how much the defendant cares about learning what really happened in a given case.
Learn MoreA great recent post at What About Clients? highlights a policy that will benefit most trial lawyers. Basically, no later than 60 days before trial, take a fresh look at everything. Here’s how it goes:
“[N]o more than 60 days from trial, read over and take a proverbial bath in all of the written discovery responses and–if time permits–every deposition transcript in the case. Work through the materials relatively quickly but as thoroughly as you can. In particular, do one good read of any deposition you did not take yourself. And of all written and signed discovery responses (you can skip the documents). Go back to the start of the case. Do not rely only on deposition summaries or on outlines of direct or cross examinations prepared by others. The process of “immersing yourself” in all the discovery will suggest new sub-themes, patterns, weak points and even a new fact or two in your opponent’s case that meant little to your side when it was first produced. Now discovery will take on new and instructive meanings. Having gone through that exercise, you will be steeped in the case. You’ll have knowledge that will give your examinations of witnesses credibility, authority and command.”
This alone is a great idea. But I think the review could be an even more meaningful exercise if it is informed by what you’re going to do with the evidence you find. When, for example, does it make the most sense to highlight a piece of particularly powerful evidence? I like to have copies handy of the most important jury instructions I expect will be given at trial. This way, as I’m taking a bathin the evidence, I can develop a plan where the evidence will be best presented. It also gives me a head start on how I’m going to structure my closing argument, where I take the jurors though each element of a claim or defense and show how the evidence proves or disproves a particular element. I like to think this is a great idea made even better.
Learn Morehttps://youtu.be/fgIBG8q1Gjc
In this clip from A Few Good Men, two Marines are on trial for a murder on their training base. The Marines’ defense is that they were ordered by officers to give the decedent, a fellow Marine, a “Code Red,” which is a violent training “tool” used to bring errant Marines in line. The decedent was killed during the performance of the Code Red.
The prosecution (played here by Kevin Bacon) wants to poke holes in the whole notion of a Code Red. When another Marine from the same unit is on the stand, Bacon cross-examines him with two books, The Marine Outline for Recruit Training, and the Standard Operating Procedure applicable to his unit. Bacon elicits admissions that the term Code Red does not appear anywhere in either manual, thus making it seem like something the defense has cooked up or exaggerated.
The defense (played by Tom Cruise) deftly resuscitates his witness by using the same Standard Operating Procedure and asking the witness to locate where in the manual it explains where the mess hall is located. Of course the manual makes no reference to the mess hall, either, crisply illustrating the fallacy behind the argument that a Code Red must be a fiction if not officially recognized in the Marine training manuals.
Oh, and sorry if this contained a spoiler. The movie has only been out for like 25 years.
Learn MoreOne of those absolutely crucial lessons most law schools don’t teach, but which you need to know if you’re going to appear in court, is the importance of making nice with the courtroom staff. A lawyer’s rapport with members of the courtroom staff–the clerk, the bailiff (or courtroom assistant), the court reporter and the research attorney(s)–can have a significant impact on how the lawyer is viewed and treated by the judge.
Obvious? Sure. But it’s not always a two-way street. Practicing in urban courts, we frequently encounter clerks who are (or believe themselves to be) overworked, underpaid and underappreciated, or just plain nasty. I struggled sometimes when I was a brand new snot-nosed punk of a lawyer and I was trying to get something scheduled or filed and it didn’t fit with the clerk’s vision of the world. Because I was brand new and terribly snot-nosed, I naively thought it was just a matter of getting the court clerk to see things my way. Being snot-nosed, I wasn’t always patient and respectful when things didn’t go my way.
I like to think I’m wiser now. At least I realize that I was coming at it all wrong. I know now that I’m a visitor in the clerk’s domain. I’m the one needing relief, or a favor, or just to stay on good terms with the judge. With years, I’ve also learned that jurors frequently take their cue from the way the judge treats the lawyers. If the judge is impatient or frustrated with one of the lawyers in a trial, jurors tend not to like or trust that lawyer. For better or worse, the courtroom staff–and the judge’s clerk in particular–often have the judge’s ear. If I mistreat the clerk (even slightly or accidentally) and that fact filters back to the judge, it can haunt me throughout the case, through trial and, potentially, prejudice my client. Since I might never get a chance to rectify the situation, I might get a raw deal with that judge for years to come.
So I do the smart thing. I mind my P’s and Q’s when it comes to the courtroom staff.
Learn MoreA great post on Associate’s Mind, entitled “Millennial Jurors: Entertain Us,” discusses the challenges facing trial lawyers trying to communicate with Gen-Y jurors. In addition to prognostications about how these young adults can’t sit still and pay attention for the hours needed to take in information during a jury trial (how will they check their smartphones?!?), the post (which itself references an article in the Texas Bar Journal) notes how information needs to be presented to Millennial jurors in shorter visual “bites,” as opposed to purely verbal, format. Better make sure it’s not boring, either.
Undoubtedly a cottage industry will sprout from within the ranks of jury consultants and trial support firms of “Millennial specialists” who claim to know the secret to engaging Gen-Y jurors. But I don’t think the shorter attention span, and increased need for engaging visual, as well as verbal, content is really that new or a bad thing at all. I’ve written elsewhere how trials are too long and taxing on jurors’ minds and attention spans. Anyone trying cases in the past 25 or 30 years knows that a purely verbal presentation–without visual aids (even rudimentary visual aids) is risky, even if the subject matter is pretty sexy.
I think that, while the (alleged) changes in attention span, and increased appetite for visual stipulation seen in Gen-Y (and presumably later) generations might be lamented by parents, educators, psychologists, novelists (and other print media writers) and others, it should not necessarily be lamented by those in the business of trying cases. Rather, like any development, it should be prepared for and embraced. It is true that evidence will need to be presented differently if it’s going to get through to Millennial jurors, and this will require some reflection and research. (Perhaps more in-depth research than was undertaken in developing the Texas Bar Journal article, which was simply a survey of law school students.) And, probably, some trial and error.
Turning the coin over, though, there will surely be evidence that only the younger generations will “get,” at least at first. For example, while it’s commonplace now for defense lawyers to scour the internet for impeachment evidence, there are older jurors who don’t surf the internet and don’t understand “The Facebook,” Twitter or LinkedIn. Cases involving new media, reality television and certain progressive technologies might be completely foreign to more senior jurors but completely familiar to members of Gen-Y. (OK, I’m a little biased because I practice in Los Angeles, where every case will someday be “pre-tried” on TMZ). In short, there should be a place at the table for every kind of juror. The challenge to the trial lawyer is to engage, as best as possible, with jurors of every generation, not just the over-30 demographic.
We’ve got to raise our game, or get out of the way.
Learn MoreI ran across this post by Karen Koehler, at a blawg I really like, The Velvet Hammer, which highlights something I’ve known for a long time: you’re far better off trying a case against an experienced, high quality lawyer, than someone who’s a newbie or careless, or both. Karen draws on her experience trying a case against a really poor defense lawyer. She won, but in the post-verdict discussions with the jurors she learned that they felt so sorry for the defendant because she had such a bad lawyer that they felt they had to “even things out.”
I echo this sentiment, but I would also broaden it to include everything from the filing of a complaint through trial. “Challenged” lawyers make our job harder–and the case more costly–from day one. They don’t know the value of the case, its strengths or weaknesses, so they can’t every talk realistically about settlement (forget about actually reaching an early resolution). They don’t follow the rules, so it’s up to the responsible lawyers to comply with the rules, including venue-specific or judge-specific procedural nuances. It seems like they’re never available to address anything substantively. They fight battles over the wrong things–again wasting time. They file improper briefs, like sur-reply briefs, complete with brand new evidence, which fouls up the entire process.
We all started somewhere. I was fortunate to have great mentors and some really great training (which didn’t prevent me from still making some stupid mistakes). But the goal should be to improve and try to learn from mistakes, not to keep making them.
Lawyering is like tennis in that the quality of your opponent brings out the best in your game. I’ll take a Federer or Nadal any day.
Learn MoreAn article in the Wall Street Journal Tuesday discussing the Rajat Gupta insider trading trial in NYC pointed out that the judge and the accused’s defense attorney, who are apparently longtime friends, have been cracking jokes throughout trial in and outside the presence of the jury. The article posed the question, but did not weigh in, on whether humor in the courtroom is a good idea? Well, when it’s the judge making the wisecracks there’s not a lot counsel can do, so why not laugh along. But when, if ever, is it appropriate for counsel to inject levity into the courtroom?
I think some humor can serve two useful purposes. First: it breaks the tension that naturally develops in a courtroom, where freedom, money, reputation or all three are at stake. Second, depending on timing, humor can break the monotony and actually “wake up” the proceedings a bit. The problem is, the parties, their lawyers, the judge, the clerk, bailiff, court reporter, observers and, most importantly, the jury, may find different things funny (or not so funny). An intentional joke can fall flat or, worse, offend. That said, here are my thoughts on the uses of humor in the courtroom:
1. It’s not appropriate when it’s not appropriate. This presumes we all possess at least some judgment and, let’s face it, some of us don’t. So, by way of illustration, when the subject matter of the trial is catastrophic injury (burn victims, etc.) or heinous crimes (rape, murder, etc.), there’s a 99.9% or better likelihood that any joke is going to offend someone. So steer clear. Don’t even try it. There’s probably nothing funny to Rajat Gupta about going to jail and facing jail time, yet it’s his own lawyer making the jokes, so presumably it’s ok. (“What, I’m paying you $1,000 an hour and you’re making jokes?”)
2. Take your cue from the judge. The judge always sets the tone of the courtroom. If the judge makes a funny, then humor may be acceptable in his or her courtroom. Pay attention to whether the judge allows humor when jurors are present. Even if laughter is permitted outside the presence of the jurors, a joke could be sanctionable conduct if made when there are jurors present, particularly if your opponent or his/her client is the butt of the joke.
3. Know when to stop. Here, again, we need to exercise our judgment and some of us don’t have any. So, to be safe, stop while you’re ahead. If something you said elicits a chuckle, leave it there. Because I’ve never been great at timing or telling jokes, I would never intentionally try to be funny in the courtroom. The stakes are too high and I don’t want to risk it. When I have been funny, however, it has always been accidental and usually something self-depreciating I’ve said or done. People seem to appreciate humility.
So . . . in my view, using humor in the courtroom is a mixed bag. I almost always appreciate it when the judge says something to break the tension, but I’m loath to try it myself. What do you think?
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