I’D MADE MY POINT. I looked at Solomon. He was smiling, and Virginia Pruitt looked shocked. I didn’t object to Jordyn’s request for a recess. In fact, I looked forward to her cross-examination of William.
The judge didn’t give her much time. After a ten-minute break he brought the jury back in. “Your witness, Ms. Duarte.”
She approached the witness stand and smiled. “Mr. Stanford, what you might have said or what you might believe is not binding on this jury, is it?”
“Certainly not.”
“And if this jury finds for the plaintiffs, you will accept the verdict, correct?” she inquired.
“Absolutely.”
“Pass the witness.” She sat down quickly.
“Any re-cross?” the judge asked.
“Just a few, your honor.” I stepped to the podium and asked, “Absolutely, huh, Mr. Stanford? I take it then the criminal charges against my client will be dropped if the plaintiffs win today?”
“Well, not exactly. It won’t be up to me. There are other factors in play that I’m not at liberty to discuss,” he hedged.
The government wasn’t about to let David out of jail any time soon. They didn’t want his programming skills loose and unfettered. They were afraid of what he might create.
“Mr. Stanford, if you will accept ‘absolutely’ a verdict for the plaintiffs that says they created the software first and that my client copied their design, shouldn’t you let him go immediately and indict all twenty of the plaintiffs that same day?”
“Objection, calls for speculation.” Jordyn sounded tired.
I responded, “It does, your honor, and I withdraw it. But it’s certainly something to think about.”
Not wanting to lose my momentum I said, “Defendant calls Dr. Thomas to return to the witness stand.”
No objections. I felt sure Jordyn had spent most of the night preparing the good Dr. Thomas for my questions.
The judge reminded him that he was still under oath, and I began.
“Arthur, I’m sure you spent a good deal of time preparing for your testimony in this trial. Did you review Mr. Ruple’s application before the patent and trademark office?”
He seemed a little taken aback. “I did. In fact, it was his application that I used to compare with the plaintiffs’ work.”
“That’s right,” I said with a smile. “You even put it up on a screen to better show the jury how they were similar. Correct?”
“Not just similar,” he corrected me. “They are identical.” He was obviously proud of his expertise.
“Okay—let’s look at Mr. Ruple’s application again.” Maggie was Johnny on the spot. David’s application and the relevant software immediately appeared on a big screen in front of the jury.
“I see that much of the information isn’t typed. It’s in Mr. Ruple’s handwriting.”
“That’s correct. I believe Mr. Ruple was in a hurry and filled out his application partially by hand.” His tone was arrogant.
“And this is the document you used to arrive at your conclusions?” I asked.
“That’s correct. I compared this document to the plaintiffs’ invention and determined they were the same.”
“You didn’t use drafts or other preliminary documents from the plaintiffs to reach your conclusions?”
“No, my testimony was based solely on a review of both Mr. Ruple’s application, and the software developed by the plaintiffs.”
“Thank you. Let’s keep this document on the screen and compare it to another.”
The scorecard, complete with mustard stains, popped up next to the application. Brian gave copies of the scorecard and David’s yellow pad to the judge and Jordyn.
Jordyn was livid. “What is this? Are you trying to authenticate this document through this witness? He’s never seen it before.”
I answered, “I was going to ask him that very question, so thank you for pointing that out.”
Before she could respond, I quickly turned to speak to the judge. “Your honor, you instructed me to speed up my examination. I have a witness who is willing to authenticate this document was found in my client’s files and is in his handwriting. If Ms. Duarte wants to question its authenticity, I can produce a witness this afternoon who will validate the handwriting.”
The handwriting on both documents was identical and clearly David’s. Moreover, the jury had been looking at it for several minutes now. Jordyn didn’t know who my witness was, but she risked alienating the judge and the jury if she slowed down the proceeding for such an obvious matter. She opted to sit down.
I continued, “Arthur, can you please compare the programming language on the scorecard and his yellow pad to the language in his application for a trademark?”
Arthur needed time to come up with the explanation.
“Well, this is a multi-page document. It would take time to do a line-by-line comparison.” He might as well have said, “drop back and punt.”
“I’m not asking for a line-by-line comparison.” I was asking the obvious. The handwriting was identical, and the coding was the same. The judge and jury could see the same thing I saw. “Ballpark, Arthur. Do they look identical?”
“Well, I don’t know about identical,” he fudged.
“Identical is your word, Dr. Thomas. How about you show the jury where the coding is different?”
I waited for his answer, wondering idly why witnesses usually look to either their lawyer or a spouse for help, as if they could somehow silently communicate a believable response.
He must have “heard” my musings. He shot Jordyn a silent plea for help, sighed and conceded. “Without time or the tools for a thorough examination, I can’t identify any differences.”
So much for the fun part.
“Arthur, what is the date on the scorecard?”
This question brought Jordyn back on her feet. “Objection. Dr. Thomas has never seen this document before today. Counsel would have him testify that both documents were created on the scorecard’s date. For all we know, Ruple grabbed a piece of paper after he stole my clients’ product.”
I responded, “As I said, we can have someone authenticate this document if necessary. My question to this witness was not intended to determine the date of the application document. I just wanted to know if he could read the date on the program. As you can see, Mr. Ruple must have been enjoying a hot dog at the time.”
That brought a good laugh from the jury. Even Moorman smiled. Jordyn wasn’t amused, but she did sit down.
“Once again Arthur, if you can, please tell us the date on the scorecard.”
“October 1, 2022.”
“Oddly enough, I was at that game. You know, it’s neither here nor there, but I can’t understand why anyone puts ketchup on a hot dog. Give me mustard, just mustard, nothing else. Do you remember who the Nats played that night?”
Arthur was irritated, “No, I don’t. I don’t go to baseball games.”
“Oh, that’s a shame, Arthur—you’re missing out on a lot. Does the scorecard mention who they were playing?”
The answer was in big letters on the screen. Arthur responded, “The Philadelphia Phillies.”
“That’s right, and the Nats won, 13-4,” I said as I turned to walk back to our table. I knew the judge wouldn’t let me continue.
Before I sat down, David mouthed, “Ask him if it works!”
I whispered back, “Are you sure?”
“Ask him.”
“What the hell,” I thought. After all it was his software.
I turned back to the podium.
“Dr. Thomas, in the course of your preparation for your testimony did you consult with plaintiffs’ software engineers?”
“I did.” He was clearly relieved to return to his comfort zone.
“Did they show you the application it creates?”
“They did.”
“Now this might be a foolish question, but since I don’t know much about computers past email and Word, did it, well, did it work?”
I’d finally hit a nerve. No one could miss the panic on Dr. Thomas’s face.
“Dr. Thomas, please answer my question. Does the software work?”