TRIAL ON MONDAY, this coming Monday? How could that be?
I soon found out. The judge’s clerk told Brian that a trial scheduled at that very time had unexpectedly settled. Moorman had decided to use that jury to hear our case. According to the clerk, who seemed to like Brian, the judge laughed and said, “Well, the plaintiffs want a quick resolution, and Patterson said he could be ready any time. Why waste a jury?” I was suspicious, but it did me no good. In this game, like most, you play the hand you’re dealt.
Of equal concern was that all requirements about sharing witness lists, discovery, and expert’s credentials had been removed from the court’s standing order. We’d be flying blind.
Regardless of whether Moorman had consulted with Jordyn before setting the new date, there was zero chance he’d be open to changing it. I now had one weekend to prepare for a jury trial, with no discovery. Over fifty years ago, lawyers used to try cases without discovery, but not anymore. Lawyers are rarely surprised at trial these days. Pre-trial discovery unearths all there is to know about the opponent’s case. We were about to venture back into the Wild West, when trials were full of twists and turns, not to mention six-shooters.
I called Brian and told him to rally the troops at the farmhouse. I wasn’t about to risk anyone listening in on my strategy, even if I didn’t have one yet. I reminded Brian to bring the judge’s “updated” standing order on jury trials. I also asked him to try to get a list of the jurors, where they lived, and their background.
Despite the judge’s admonition about jury consultants, there is nothing nefarious about getting basic information about each juror, such as age, sex, and occupation. I felt sure Jordyn and her cohorts knew all there was to know about the potential jurors. If Hans knew all my credit card numbers and spending habits, I bet Jordyn’s clients could easily find out what type of toothpaste the jurors used. I told Brian to find out who the lawyers were on the case that had settled. Maybe they would share information on the jury panel.
I’m old fashioned, but it bothers me that we have no privacy anymore. A person might browse through a website looking for a new sweatshirt. The next thing he knows, he’s inundated with emails from sweatshirt makers, and when he reads the daily news online, the website is full of ads for sweatshirts.
I got off my silent soap box and asked Clovis if he had any news; I’d seen him speaking quietly into his headset as he drove. He told me we were being followed—nothing that seemed dangerous, just one car a few lengths back.
“Do you want me to lose them,” he asked.
“Nah, I’m not up for high-speed chases right now, and we’ll be well-protected at the farmhouse. I’m trying to think through all we need to accomplish between now and Monday. Now that I think about it, we should have swung by my place. I’m going to need some clothes for the weekend, and my court suit on Monday. I wear a special suit for jury trials. It’s a little threadbare, and not too expensive. A lawyer can turn off a jury when he wears an expensive suit and a fancy watch.”
“I think I may have heard you mention that once or twice,” he replied, struggling to keep a straight face. “Don’t worry, Maggie is way ahead of you. She and Brian went by your place to pack a suitcase on their way out of town. And be forewarned: Stella told her to pack your gym clothes, too. She wants to put you through your paces.”
Stella runs a high-performance gym in Little Rock. When we’d all stayed at the farmhouse a few years ago, Stella held morning workout sessions. I enjoyed watching. The very thought of a workout with Stella gives me cold shivers.
We pulled in the driveway just a few minutes ahead of Maggie and Brian. While they all unpacked and compared notes, I sat down in the den with Stella and Rita.
“Sorry, Jack, but no luck yet. We have no idea what David’s software does.” Stella shook her head in frustration.
“What about the box?” I asked. “Find anything interesting there?”
Rita answered, “I can’t find any method, any organization to the material at all. Just lots of jumbled notes with his scribblings, sometimes on both front and back, but nothing to clarify them. I’m still working on it, but so far, nothing.”
“Keep trying. We’ve got a deadline now,” I urged, trying to sound confident.
I felt a little overwhelmed, so I took a walk down to the fishing pond. I’m a good lawyer, in fact a very good trial lawyer, but right now I felt like a fish out of water. I would face a hostile judge, who would rule against any objection I raised. I assumed Jordyn knew everything there was to know about every juror, while my decision to strike or accept a juror would be based on appearance and whether they would look me in the eye. I would have to cross-examine experts who knew David’s software backwards and forwards, while I knew absolutely nothing about it. And I was sure Jordyn would throw in a few traps. For all I knew, she’d already interviewed my client! After wallowing in a self-imposed pity party for a few minutes, I literally shook myself off like Jacob Lee’s dog, Fergus, had on my new carpet and strode up the hill to the house.
I found them all waiting in the great room. I gave them each additional research to do, experts to contact or motions or briefs to prepare. I warned Mike and Martin not to let their guard down. Hans and his hitmen were surely waiting somewhere.
My first job was to look carefully at the judge’s standing order concerning selection of the jury. As he had emphasized, the judge was not a fan of using voir dire to pre-try one’s case. The judge would ask the questions of the potential jurors, and he would entertain suggestions, but no questioning by counsel was permitted.
He restricted the number of strikes allowed, and his order cautioned against contacting potential jurors. The order contained an unusual provision that restricted post-trial contact with jurors, but I didn’t see how that could become an issue. All in all, it seemed that a jury should be in place by the end of the day. I asked Maggie to find out if we knew an attorney who had tried a case in front of Judge Moorman, someone who could be a good resource as to how he conducted a trial.
I spent the rest of the afternoon making notes about potential themes to use with the jury. I don’t usually write my opening or closing arguments before a trial. It doesn’t make sense to box myself into a specific concept or strategy, especially in a case where I had no idea what the evidence might offer. Instead, I thought about how I might simplify my arguments to make them more understandable to a layperson. Many professionals don’t like their cases decided by juries because surely only degreed professionals can understand complicated legal issues. They have an argument, but experience has taught me that in most cases juries get it right, sometimes better than a panel of professionals. Common sense often rules over expertise.
I had to return a call from Royce, who was irritated by the quick trial date and the closed courtroom. He had hoped to monitor the proceedings. He calmed down once I explained the situation. Sadly, I had to decline his very serious offer to call the judge personally. I would have given a lot to listen in on that conversation.
I asked him to explain the circumstances to Thibodeaux and to double check on David’s security. His call reminded me to ask Rita about court clothes for David. Whether through actual spite or simple laziness, court officials routinely make the accused appear in front of a jury in an orange jumpsuit and shackles. “Oh, sorry—his other clothes were delivered too late” was a common justification. So much for the presumption of innocence.
Rita said that David had one suit that he wore in front of their special clients. Curious, I asked what made a client “special.” She answered with perfect brevity, “They pay.” Brian volunteered to make sure David was properly dressed and well-groomed on Monday morning. I thanked them both, happy to be able to check at least one thing off my worry list. Security and transportation for my team was another detail that concerned me, but Mike assured me they’d gone over the arrangements twice. Clovis grimaced, and I forced myself to quit worrying. My team had prepared for trial before and knew their respective duties.
I spent almost all of Saturday focused on the unique procedural rules involved in a patent case. Jacob Lee was incredibly generous with his time and advice, and I ‘hit the law books’ hard. I use the phrase out of habit, but of course but most legal research these days is accomplished via the Internet. Maggie asked if I was worried that Hans might be monitoring my research.
“I certainly hope he is. The ins and outs of when to object to certain evidence is exactly what I want them to think I’m focusing on.” I told her, as we strolled to the pond that afternoon.
“Okay then, what exactly are you worried about?”
“I have a complex trial beginning on Monday. I don’t know either the intent or potential use of David’s software or how the opposition will explain their position that the software rightly belongs to them. I feel sure that Jordyn has more than a couple of surprises in her bag of tricks, and to top it off I’ve never tried a patent case. I know I could be ready in a year, but instead I have one weekend.”
“Well, you did ask for this,” she reminded me.
“You’re right, I did, and I still believe a quick trial works for us, but I’ve never felt so ill-prepared. Flying by the seat of my pants hardly describes it.”
On Sunday afternoon I called everyone into the great room. They watched in silence as I dealt out the first of two sets of index cards I’d prepared.
“I hope to be able to give this first set of cards to David. I’ve written on each one a question I want him to answer. Hopefully, he can answer them during the breaks.”
They each looked at their cards while I dealt out the second set. “The second set of cards, which you’ll notice are blank, is for you. Please take as much time as you need to write down anything you’d like to ask me or him. When you all have finished, we’ll discuss your questions.
Mike asked, “You sure you want me to participate? I don’t know anything about the case itself.” He looked thoroughly confused.
“Absolutely. You are just like every prospective juror. You don’t know anything about the case yet. What would you want to know if you were in their shoes?”
“I’d like to know how long I would be sitting here.”
The others smiled and nodded. “Exactly, and that tells me not to drag out questioning. But do try to think what you might want to ask David as well.”
“I have a question,” Maggie piped up.
“Can it wait?” I asked.
“No, it cannot. What are we having for dinner?” she asked.
“For those who participate in my little card game, Clovis has a surprise.” I tempted them.
It took about thirty minutes before they had all handed their cards back to me. We had a lively discussion, which was as good as pretrial preparation as I could imagine. They came up with good questions for David that I incorporated into mine. They also peppered me with questions about my opening argument and how to cross examine the patent experts. We finished with a logistics discussion. Stella and Rita wouldn’t be allowed in the courtroom. We had to find a way for them to communicate with us, and us with them. Since I had little expertise in software language, I anticipated that Jordyn’s expert might be communicating in Greek. Simply put, I needed Rita and Stella to act as translators.
When we had finished, Clovis covered the large dining table with newspapers and disappeared. To everyone’s delight he reappeared a few minutes later bearing an enormous tray of Atlantic blue crabs and corn on the cob, both hot off the grill. He passed around wooden mallets and crab forks and we all dug in eagerly. To quench our thirst, he offered a variety of beers from Wicked Weed Brewery in Asheville. I contributed a few bottles of nice chardonnay as well as an excellent New Zealand sauvignon blanc.
It was the perfect ending to our weekend of hard work. We were able to forget about the trial, even Hans for a while, and enjoy each other’s company. Tomorrow would be a different matter. I hoped we’d all live to tell the tale.