May 3, 2017
by: Brad Fawley
Plaintiff in Patent Trial
All trials have at least one thing in common – the jury needs to determine who was right and who was wrong. And, in a patent case, the jury does not make that decision based on the court’s nuanced Markman construction of claims, or dozens of engineering drawings, or testimony of experts or schematic decision trees. They decide who is right and who is wrong in the same way that humans have always made difficult moral choices, dating back to prehistoric councils that gathered around blazing fires to judge fellow tribe members – they look for and then they punish evil. Using their own moral compass – shaped by their upbringing and tempered by a bombardment of contemporary social information – each member of the jury then and now swiftly frames a story of morality that works within their construct. And, once that story is developed, because we are hard-wired to stick to our convictions, and be skeptical of and resist new ideas at nearly any cost, the juror will cling to their opinion to the bitter end. Note – “Twelve Angry Men” was a compelling movie because it portrayed exactly the opposite of what actually happens in the jury room. Unlike the actors in “Twelve Angry Men,” having decided who is good and who is evil from the very beginning of any case, real jurors will not make their decisions in the jury room much less change them. Instead, they make their decisions as early as possible and thereafter only see the evidence and the court’s instructions of law through their predetermined filter. Almost nothing can sway them from that perspective.
This is why the Plaintiff in any patent trial has an extreme advantage. The Plaintiff gets to make the first opening statement and present its evidentiary case first. This invaluable, and often decisive, advantage should never be squandered. However, it often is. It is common for the Plaintiff’s counsel to stand before the jury in opening statement and proceed to put them to sleep with a droning recitation of the chronology of the facts, a description of the law, or a detailed breakdown of the invention and claims at issue. Jurors, most of whom, have only seen a courtroom on TV from the vantage of their living room couch, are excited to be participating in the trial and, importantly, they want to start making decisions now. More than anything, they want to decide the case even though the judge has cautioned them to keep an open mind and give each side a fair chance. The Plaintiff’s counsel must not waste the chance to ride that wave of juror enthusiasm and tell a simple story of morality that brings the human aspects of the case to the fore and paints the Defendant as utterly evil. For example, telling a story of the sacrifices of the inventor and the Defendant’s scheme to steal her ideas. Or, the story of the company who has been manufacturing and selling a well-known product covered by prior art for years and the Defendant patent troll who now seeks to extort millions on a questionable patent purchased at a discount price.
Unfortunately, the Plaintiff’s counsel who starts by squandering her client’s first opportunity to draw the jury to their side of the fence, will consistently follow up by sealing the deal and calling their own witness to the stand to reiterate the theme of the opening statement. Wrong! Put the Defendant’s key witness on the stand and attack. This does not mean histrionics and raised voices. But, instead, having already developed through depositions of the Defendant all of the evidence needed to tell the Plaintiff’s story, the Plaintiff’s counsel should use the power of leading questions, demonstrative evidence and the ability to control the Defendant’s responses on cross-examination to tell the Plaintiff’s story through the Defendant’s own mouth. Nothing is more persuasive. Jurors look for fault and wrong motive in anyone sworn to tell the truth and, especially, facing confrontation on cross-examination. Have the Defendant stretch the truth just a bit too far or, worse, be confronted with an inconsistency, and the jury will hold them more than accountable. Most importantly, having already formulated a story based on the Plaintiff’s opening statement, the jury will look for every opportunity for the Defendant to corroborate and validate the conclusions they have already privately reached. Any conflicting testimony will be dismissed as inconsistent with already reached conclusions and the Defendant’s counsel’s direct examination will be viewed only as lawyer manipulation.
The takeaways? First, decisions in patent trials are made by humans just the same way tribal councils decided matters 10,000 years ago – who played the evil part? Second, jurors want to and, given a chance, will jump to a conclusion that is consistent with their upbringing in light of social influences. Third, Plaintiffs have a big advantage because they get to go first. Fourth, in opening statements Plaintiffs must tell a compelling moral story consistent with the evidence that paints the defendant in a bad and evil light. Fifth, the Plaintiff’s counsel should call the Defendant’s key witness to the stand first and use already developed facts in cross-examination to reinforce the conclusions the jury has already formulated after opening statements.
Patent trials do not need to be boring technical exercises. To win, give the jury a juicy drama and plenty of ammunition to vote against the Defendant. Begin by attacking.