JORDYN AND STANFORD WERE BOTH ON THEIR FEET demanding a conference in chambers.
I asked within earshot of the jury, “Why all the secrecy, judge? All I asked was what it does.”
Judge Moorman ignored me and told the jury we would take a ten-minute break.
We waited in silence until the jurors had dutifully followed the marshal out of the room. Without introduction or permission, Jordyn turned quickly to Moorman. “Your honor, the nature and function of my client’s software is critical to our nation’s security. We can’t have our trade secrets exposed just to satisfy Mr. Patterson’s curiosity.”
I was ready for her objection. “Then drop your damn lawsuit, Jordyn.”
My language caught everyone off guard, and I continued before anyone could react.
“The prosecution has withheld access to my client, filed motions and briefs without letting me see them, and now they don’t want me to ask their witness what this software does, all in the name of “national security.” If their software is so special, so hush-hush, why sue my client?
“They opened their own can of worms by filing this lawsuit and getting their paid expert to testify that my client couldn’t have developed this software on his own. Well, he did. And the only way the jury will understand why he did, is for them to understand what it does.”
Moorman sighed and began rubbing his face with both hands, as if he could make the issue disappear. Jordyn’s objection had put him in a box. He knew I was right.
He finally spoke. “Mr. Patterson, I understand your concern, but I don’t see how I can let you follow this line of questioning.”
I pulled out my ace card. “Your Honor, if you rule in her favor, you will give me no choice but to take this matter to the DC Circuit, where I will seek a stay. I don’t want to; I’d rather proceed with the trial. But what this software does is critical to my client’s defense.”
Neither Jordyn or Stanford wanted either the subject matter or their shenanigans brought before the DC Circuit. Nor did the judge.
“What if I instruct the jury, and I will make it very clear, that they may not speak to or in any way communicate with anyone about what they are about to learn until I instruct them at the end of the trial,” Moorman proposed.
Since neither Jordyn nor Stanford were willing to argue, they had no course but to agree. The judge asked the marshal to bring the jury back into the courtroom, and I resumed my cross-examination.
“Arthur, you have stated that both parties’ software is essentially the same. What does it do?”
Dr. Thomas responded, “Well, it’s complicated, but I’ll try to explain.”
He spent a great deal of time giving a very detailed explanation of the messaging and code, using very technical language. After fifteen minutes not a soul in the courtroom, other than he and David, had any idea what the software did.
I wasn’t about to give up. “Arthur, I’m sure the jury appreciates your detailed technical explanation, but for those of us who aren’t software engineers, can you explain what it does in layman’s terms?”
“I’m not sure I can,” he answered.
“Oh, come on, Arthur. Don’t make me pull teeth. We’re all waiting with bated breath. What is the software’s purpose? What can it do?”
Arthur was caught between a rock and a hard place. He looked to Jordyn, whose face gave him no encouragement. He delayed a little too long.
Judge Moorman leaned over his desk and glared at him. “Dr. Thomas, Ms. Duarte cannot answer the question for you. You have presented yourself as an expert in the field of software development. Answer Mr. Patterson’s question.
Thomas swallowed hard and replied, “Yes, Your Honor,”
He turned to face me. “Essentially, it creates an application, what you would call an ‘app,’ for your phone, iPad, or computer that makes it difficult for someone who didn’t create a particular record to be able to access it.”
I was puzzled. “Can you give me an example?”
“Well, let’s say you have a driver’s license. You could pull up the app, check a box, and no one could access your driver’s license, or the information on it, through the internet except the issuing authority.”
“Wow,” I said softly. “Are you saying that if I had a criminal record, no one could access that record except the court where I was convicted? That is, if I had the app and if I checked the right boxes?”
“Exactly,” he answered, sounding more confident.
“Are the records destroyed?” I was now fascinated.
“No, but no one can access them or even know they exist except the affected party and the person or entity who created the record.”
“Wow!” This time my excitement was evident. “You mean when I go on the internet to buy shoes, no one needs to know except Nike? No more ads for shoes every time I open my phone?”
“If you check the right boxes in the application, that’s correct,” he smiled, happy to agree.
“Sounds complicated. But aren’t there already products that allow a user to block people from accessing one’s private information?”
Warming to the subject, he smiled again. “There are, but none are so simple to use, or so broad in scope. This software is as complex and creative as anything I’ve ever seen. Yet a child could easily understand how to use it.”
“Hmmm. It sounds to me that if the public at large had access to this app, it could change the way both the plaintiffs, law enforcement, and foreign intelligence organizations do business. Is that correct?”
Jordyn looked miserable, but Thomas was now in his element. “Yes, sir! And we’re not talking about just our judicial system. Our entire economy is built on access to information. This software would restore privacy to anyone who can afford to buy the app. It’s a real game changer.”
I finally knew why everyone wanted David’s software. Internet companies make their living by knowing what we want and selling our buying habits. If I visit even one site looking for walking shoes, within seconds every site I frequent contains ads for shoes. If I buy a set of wine glasses for a friend’s birthday, I am instantly inundated with ads for glasses, wine, cocktail napkins—anything to do with entertainment, on every site I open. You can purchase ad blockers, but they’re complicated to use, and most can be easily bypassed.
The government had a bigger problem. If an individual had access to this software, no one would know whether he had a criminal record or not. That person could go to another state, apply for a job, register to vote, and apply for a driver’s license without anyone suspecting a thing. After paying a fine or serving his sentence, his slate would be effectively wiped clean. I couldn’t imagine how it might affect intelligence gathering, both home and overseas.
And this example revealed just the tip of the iceberg. Our government and economy depend on information. David’s software cut off the flow. Anyone could be as private as he or she wanted to be—well, almost. No wonder everyone was in such a tizzy. Individual privacy doesn’t exist anymore, but with David’s application it might come close.
I still hadn’t developed a defense to Jordyn’s lawsuit, but at least I knew what I was up against.
I had another line of questions for Dr. Thomas but decided to wait until I called him back to the stand. I passed the witness to the prosecution.
Jordyn’s redirect was a regurgitation of her basic themes. Her clients’ software was developed before David’s and was identical to theirs, thus it must have been copied. She emphasized repeatedly that David was not capable of developing such complex software. She then put on a series of witnesses who bolstered her case that the design was completed in May.
None of them could tell me how David was able to steal their invention, so my cross-examination was brief. I pointed out that twenty companies had purposely ignored antitrust laws to develop their invention. Unfortunately, I didn’t make any headway with my antitrust inquiries, except with Solomon. After all, none of these companies were on trial today.
I was tired and depressed when David handed me a note asking why I hadn’t asked if the plaintiffs’ software worked. I assured him again that I would when the time was right.
Jordyn rested her case at a few minutes after five that evening. The judge released the jury for the night, admonishing them not to discuss the case with anyone, not even their spouses. Before he banged his gavel to conclude the day, he called both Jordyn and me to the bench.
“Mr. Patterson, I want to give this case to the jury by early afternoon tomorrow. We’ll begin tomorrow morning at nine o’clock sharp. I hope you won’t try to drag this case out.”
Great, I thought. Moorman had already decided the case and was ready to send David to the lock-up for good. I knew it would do no good to respond to his provocation, so I kept my tone even. “Your Honor. I’ll be ready. But I’d like to make sure of one thing before we’re dismissed.
“Okay,” he sighed, “Go ahead; what is it now?”
“I feel sure Ms. Duarte has asked Dr. Thomas to be present in the courtroom to hear my witnesses. But in case she hasn’t, I want to make it clear that I haven’t released the witness. He is to be available if I want to call him during my case in chief.”
Jordyn was surprised. “What else can he say?”
I didn’t bite, remaining silent. I wanted her to spend the night preparing Arthur to respond to whatever I could possibly ask—at seven hundred dollars an hour.
Judge Moorman seemed equally puzzled but agreed. “Ms. Duarte, please have Dr. Thomas available. I don’t want to give Mr. Patterson any reason to ask for a delay. I expect both of you to be prepared to give your closing arguments tomorrow. I mean for this case to go to the jury sooner rather than later.”
He brought his gavel down with unexpected force, and we were suddenly free to go. The marshal appeared immediately, and I had no chance to speak to David again.
Moorman couldn’t be criticized for dragging his feet. The upshot was that I had less than twenty-four hours to come up with a defense. Nothing like a little pressure.
I was more than ready to leave but didn’t see Duke anywhere. Maggie and Brian had gathered our belongings and were waiting at our table. Brian told me that Duke had left quickly, almost before the judge had dismissed us. I shook my head and asked Maggie to find him. I needed to speak with him before tomorrow.