AFTER JORDYN CONCLUDED HER EXAMINATION and again thanked Thomas for his expert opinion, the judge called a recess for lunch. Not only did the break give the jurors much needed time to eat, but it also gave them time to talk among themselves about Dr. Thomas’s testimony. Despite the judge’s admonition not to talk about the case among themselves, we all knew they would. They always did.
As soon as Moorman rose, the marshal quickly took David’s arm to lead him back to his cell. He also swept up the cards David was working on, the ones I’d asked him to respond to. I watched calmly as they disappeared through the side door of the courtroom. I had no doubt that my questions and his answers were now in the hands of both Jordyn and Stanford.
I quickly objected, emphasizing again that I had been denied normal access to my client. My objection was quickly overruled—again.
Fortunately, I had seen this larceny coming, and while Jordyn was fawning over Thomas as his testimony ended, I’d switched the cards David had answered for new ones. The new ones asked far more interesting questions, such as “who won the NCAA National Basketball Championship in 1994?” and “who beat undefeated Georgia in the 1969 Sugar Bowl?”
Both Brian and Duke had noticed the switch, and we enjoyed a quick laugh when I returned to our table. We’d had our fun, but we hadn’t yet been able to slow down the opponents’ train. The proceedings were moving faster than I could have expected. Jordyn was confident again, and with Moorman’s help the trial could be over this afternoon. I had planned to reserve cross-examination of Thomas until I presented our defense, but with a little unforeseen help from David I decided on a different strategy.
David had slipped one note into Brian’s hand before he was taken away. It said:
Ask Him If Their Software Works!!!
I stared at his words—surely it worked. I needed to find out why David was so insistent. But the Marshall didn’t bring him back to the courtroom until the judge and jury had returned from their lunch break. I had no time alone with him at all. I was also wary of the adage that a lawyer should never ask a question when he doesn’t know the answer. I certainly didn’t know whether the software worked or not. I didn’t even know what it was supposed to do.
“Begin your examination, Mr. Patterson,” Judge Moorman directed.
I had decided to begin by making Jordyn and her co-counsel nervous.
“Dr. Thomas, may I call you Art?” I began.
If I continued to address him as Doctor, I would reinforce his credentials.
“I’d prefer you called me Arthur,” he replied with a smile.
“Objection, Your Honor. I believe Mr. Patterson should address the witness as Doctor or Doctor Thomas.” Jordyn interrupted.
Before the judge ruled, I responded. “Your Honor, if Ms. Duarte interrupts me after every question, we’re going to be here all afternoon and tomorrow, too. I didn’t interrupt her during direct even once.”
The judge didn’t want to slow this case down.
“Ms. Duarte, the witness said he wants to be called Arthur. You did a good job of establishing his credentials. Let’s move on. And please try to hold your objections to a minimum. Go ahead, Mr. Patterson.”
“So… Arthur,” I began with a smile. “You testified this morning that you examined the plaintiffs’ software line by line and then compared it to my client’s software line by line. Is that correct?”
“Yes, that is correct,” he answered.
“There are twenty plaintiffs in this case. Please tell the court which plaintiff developed the software.”
Jordyn was on her feet, but the judge stopped her. “It’s a reasonable question.”
Arthur looked confused.
“Do I need to repeat the question?” I asked, again with a smile.
He hesitated, but finally answered, “My understanding is that it was developed as part of a collaboration.”
“A collaboration? Oh, I see. You mean to say that twenty software engineers from twenty different companies all met in one room and developed this software? Is that right?”
Thomas looked uncomfortable, as did every lawyer for the companies. I turned and directed the barest hint of a smile toward Solomon, who was now sitting in the front row of the gallery.
“I have no information regarding how many engineers were involved. I was hired to compare the two software programs and to be an expert witness.”
“Who hired you?”
“Ms. Duarte’s law firm,” he answered.
“Then I’m sure Ms. Duarte prepared you for this next question, Arthur. How much are you being paid by Ms. Duarte?”
I don’t usually bother to ask about expert witness fees. But in this case, I wanted the jury to know that Arthur’s testimony had been bought and paid for, especially since I couldn’t produce my own expert.
Arthur relaxed a bit. “My fee is seven hundred dollars an hour for my review, and six thousand dollars a day for depositions and trial testimony.”
“I’m sure you’re worth it.” I mumbled loud enough for the jury to hear me.
“When did this collaboration of engineers who developed the software in question occur?” I was venturing into uncharted waters.
“I believe the coding was complete in May of 2023, but I feel sure they’ve done some tweaking on it since then,” he answered.
“Did they file for trademark protection for their software like my client did?”
“No, they didn’t. But that’s not relevant.” He had regained his confidence.
I knew the answer to my next question.
“And why not?” I asked.
“When it comes to software, it’s first to invent, not first to file. The plaintiffs finished in May; Mr. Ruple didn’t file for protection until June of 2023. As I testified earlier, it’s clear he copied the plaintiffs’ work.”
I was convinced the plaintiffs had copied David’s work, but without discovery I couldn’t argue with their assertion that they had invented the software in May.
“Arthur—how do you know my client didn’t invent his software earlier than May?”
Arthur gave me a kind smile. “Because no individual could have developed this software on his own. It is identical to the plaintiffs’ invention. Ergo, he had to have copied theirs.”
“Unless the plaintiffs stole his work and copied his design? Right, Arthur?”
Jordyn couldn’t stand it any longer.
“Asked and answered, your honor. Dr. Thomas has said more than once that Mr. Ruple is incapable of developing this complex a product on his own. Besides, the dating is clear. My clients finished their work in May. The defendant copied it and tried to patent it in June. Does Mr. Patterson have any proof that his client invented this software before May?”
Moorman was clearly bored. “Let’s move on, Mr. Patterson.”
“Yes, Your Honor. Arthur, how did my client steal the plaintiffs’ software?”
“Wh…what do you mean?” he stammered.
“I mean, Ms. Duarte has loudly and repeatedly alleged that my client stole her clients’ software. You have testified he copied it. But there is no public filing by the plaintiffs for trademark protection. Did my client find such dangerous software on the Internet?
He looked puzzled, as did the jury, but managed to come up with a response.
“No, Mr. Paterson, it is not on the Internet. Maybe he obtained it by hacking into their computers.”
“Oh, come on Arthur. It’s okay to admit you don’t know.”
“He had to have hacked into one of their systems,” he repeated stubbornly.
“You would have this jury believe that the biggest computer companies in the world don’t have protection from a lone hacker. Arthur, did any of the twenty plaintiffs or anyone at the companies they represent tell you how David Ruple got a copy of their software? Or even how it could have happened?”
“No.”
“So, you really don’t have any idea how my client could have stolen the software, or whether he did. Your response that he must have hacked his way into one, or even all twenty, of these very sophisticated computer systems was nothing but pure conjecture on your part.”
“Was that a question?” he asked, looking toward Jordyn. “Do I need to answer?” Jordyn looked dumfounded.
I had made my point. The problem was that I had no proof that David had developed the software other than his own testimony. To allow him to testify would in essence waive his fifth amendment rights, and I couldn’t take that risk. At least I had the jury wondering how my client “stole” the plaintiff’s product. I girded myself for the next set of questions I had for Arthur. Jordyn hadn’t asked, and I had to.
“Arthur, I’m curious about one point and a bit surprised that Ms. Duarte didn’t ask you in her direct. The prosecution has emphasized repeatedly how complex and special this software is. Can you tell me what it does?”