AS JORDYN GOT TO HER FEET, a man I knew well opened the door at the rear of the room and took a seat near the back. Solomon Banks had been my boss at the Justice Department and was now a professor of antitrust law at Georgetown Law School. Stanford leaned over to whisper something to Jordyn.
Jordyn immediately asked to approach the bench and almost before I could join her, said, “Your Honor, a person has just entered the courtroom who is not associated with any of the law firms involved in this case. I thought he might be a member of the press, but my colleague, Mr. Stanford, recognizes him as a former employee of DOJ. As this case involves vital national security issues, could you find a way to excuse him without disclosing the nature of this case? I suspect this is another one of Mr. Patterson’s ploys.”
I smiled and turned to the judge, “Your Honor, I do know the gentleman to whom she refers. He is Solomon Banks, former Assistant Attorney General for the antitrust division. You’ll have to ask either him or Mr. Stanford why he’s here. I have no idea.”
“You’re lying,” Duarte hissed. “You were seen talking to him at the law school the other day. Your honor, I believe Mr. Patterson should be sanctioned for violating your gag order.”
Jordyn had just confirmed that I had been followed.
“Your honor, I did not mention any part of this case, or even that I might have any interest in it, when I met with my old boss the other day. Instead of allowing Ms. Duarte to make wild accusations, perhaps you could call him to the bench and ask him yourself.”
Jordyn continued to fume, seemingly unaware that her “colleague” Stanford was tugging at her sleeve.
The judge called Solomon to the bench.
“Sir, this trial is closed to the public. Please identify yourself and tell the court what interest you may have in this case.”
“Of course, Your Honor. My name is Solomon Banks, and I teach antitrust law at Georgetown. I met the Attorney General for lunch the other day, and we talked about old times. Jack’s name, I mean Mr. Patterson’s, came up, and I told him we saw each other from time to time. He told me that Jack and one of his best young trial lawyers would be going at it and suggested I might want to sit in. I didn’t have a class today so I thought I might watch today’s proceedings. I didn’t know the courtroom was closed. The AG didn’t mention it.”
Jordyn couldn’t help herself. “Patterson told you what the case was about, didn’t he? Your Honor, I’m sure Mr. Patterson has violated your gag order.”
Before the judge could say a word, Solomon addressed her in the stern tone that made many a law student cringe. “Young lady, the last time I saw Jack he told me he was planning to retire. He didn’t mention this case or any other for that matter. I’ve never known Jack to speak out of school. If you doubt my reason for coming here today, I’d be happy to get the Attorney General on the phone. He told me about the case at lunch.” Solomon pulled his iPhone out of his pocket.
Stanford came to Jordyn’s rescue, “Your Honor, the Attorney General told me only this morning that Mr. Banks might drop by. I apologize. I forgot to mention it to Jordyn, I mean Ms. Duarte. Mr. Banks is here as a representative of the Department of Justice, and at our next recess I will explain to him our national security concerns. I’m quite sure he will abide by the court’s gag order.”
The last thing Jordyn wanted was an antitrust expert sitting in on this trial. She didn’t apologize or even respond, but she did manage to get her temper under control. She returned to her table without a word, and I followed suit. I hoped she would forget her opening statement, but she didn’t. Within a few moments and despite her protestations about time limits, she gave a very well-prepared fifteen-minute opening.
“The plaintiffs were forced to bring this case against Mr. Ruple to prevent his theft of software designed, developed, and owned by my clients. The evidence will show…”
Her opening was a work of art, leaving the strong impression that my client was a gangster who had stolen her clients’ software. She intended to prove their case through testimony from an expert witness who would say that David’s software was an identical replica of what her clients had spent years in developing.
When she finished, she gave me a smug smile and sat down. Her train was back on track.
I rose from my chair and spoke to the jury, “Ladies and gentlemen, at the close of this case the judge will instruct you that anything said by the lawyers is not evidence, and that you should base your case solely on the evidence. Accordingly, I will not waste your time with an opening statement, because what I might say, or what Ms. Duarte just said, is not evidence.”
I emphasized the last three words, but as I got back to my table I turned back to the jury and said, “She just told you that the defendant stole her clients’ software. In case you’re wondering, let me assure you that not a word of her accusation is true.”
Before I could find my chair, Jordyn was out of hers. “Objection, Your Honor. What he just said might be his opinion, but it’s certainly not evidence.”
I responded before Moorman had a chance to react, “She’s right. What I said isn’t evidence. But for the record, all that stuff she said wasn’t evidence either, it was pure hogwash.”
Some of the jurors were laughing, but the judge wasn’t.
“Mr. Patterson, I find your conduct inappropriate. I have a good mind to hold you in contempt.”
Before he did, I responded in earshot of the jury. “Why, Your Honor? I could have wasted the jury’s time as well as yours with fifteen minutes of explaining why Ms. Duarte will not be able to prove her case. I thought the word ‘hogwash’ would get my point across in much less time. I mean no disrespect to counsel, but she will not be able to make her case. Would you like me to explain why? I have the time.”
The last thing Jordyn wanted at that moment was for me to demonstrate the deficiencies of her case. She gave Moorman a slight head shake, and he told her to call her first witness. I had upset her momentum, the jury was still giggling, and I had made my point.
“The plaintiffs call Dr. Arthur E. Thomas,” she announced.
Dr. Thomas had earned a PhD in software engineering from Stanford as well as a list of other credentials as long as his arm. It would have been fruitless for me to question his qualifications or expertise. He wore wire rim glasses, spoke in an educated tone, and sported a well-trimmed beard. He projected the very epitome of a learned college professor.
Jordyn greeted her expert warmly, thanking him for his appearance and verifying his academic credentials. She then verified that he had reviewed the plaintiff’s software and David’s application for trademark protection. Finally, she came to the crux of his testimony. “Dr. Thomas, in your opinion is the software claimed by Mr. Ruple the same as the one developed by the plaintiffs.”
“I’d say it is identical,” he said and then took the next hour to compare the software’s x’s and o’s in minute detail, pointing out the similarities on a big screen.
When he finally turned off his laser pointer, Jordyn asked, “Dr. Thomas, in your expert opinion did Mr. Ruple steal his software design from my clients?”
He answered, “Most certainly. The coding is virtually identical, and in my opinion one person alone could not have been able to design this program.”