THERE COMES A MOMENT IN ALMOST EVERY TRIAL. It can be a confession from a witness, a statement by counsel, or a judge’s ruling, but when it occurs, the course of the trial changes dramatically. The look on Arthur’s face when I asked him if the software worked was that moment. The jury, the judge, and even Jordyn were visibly stunned, and I had a different case altogether.
At first Arthur tried evasion. “I explained before that the software needed tweaking.”
“I’m not talking about tweaking. You gave us examples of what it was supposed to do. Does it do what it’s supposed to do?”
He stumbled again. “Well, it’s complicated.”
“My question is not complicated. Does it work, or not?”
Arthur looked at Jordyn again, but she was as interested in the answer as the rest of us.
The judge intervened. “Answer the question, Dr. Thomas.”
With a deep sigh, he gave in. “As it now exists, the software doesn’t perform the functions it was designed to do.”
“You mean it doesn’t work.” I didn’t want there to be any doubt.
“No, it doesn’t work,” he snapped.
“Do you know why? What exactly is the problem?” It really didn’t matter, but I knew the jury was interested.
“It’s missing something, some lines of code or something.”
“Are the software engineers for all twenty plaintiffs working on a solution?”
Arthur smiled. “Night and day.”
“Not as far as I know.”
Jordyn didn’t know where I was going, but she realized her case was headed downhill in a hurry.
“Objection. Relevance, your honor. Counsel is getting way off field here.”
“Sustained, move it along Mr. Patterson. You’ve made your point.”
I had made my point. I didn’t know the answer to my next question.
“Dr. Thomas, you testified earlier that my client’s software is virtually identical to the plaintiff’s. Does my client’s work?”
“No. The plaintiffs’ engineers replicated his software. His is missing something as well.”
“Software engineers for twenty different companies can’t fix either one?” I asked.
“I’m sure it’s only a matter of time.”
“Maybe they should ask my client how to fix it. Thank you for your testimony, Dr. Thomas.”
I asked Moorman for a ten-minute break and sat down. I wanted Arthur’s testimony to sink in with the jury, but more importantly I needed time to think. Should I call David or Rita to the stand? Once again, the marshal hurried David away almost before the judge’s gavel struck. I had no chance to ask him why the software didn’t work.
Moorman was nothing if not punctual. He brought his gavel down exactly ten minutes later. Jordyn’s cross examination of Arthur was decidedly brief. What could she ask? Nevertheless, she had him point out that he wasn’t vouching for the authenticity of the scorecard, nor was he a specialist in repairing software. Arthur looked immensely relieved when she finally dismissed him.
Judge Moorman wasted no time before calling both Jordyn and me to the bench. “How many more witnesses do you have, Mr. Patterson? I’m trying to gauge when we should take a lunch break today. I want to instruct the jury and give them the case this afternoon if possible.”
“At this point, the defense rests,” I answered.
Jordyn couldn’t believe it. “What? You’re not calling Ruple to the stand? You’re not going to authenticate the doodling on the scorecard? You must be nuts.”
Duke had joined me at the bench. For once, the judge didn’t take offense at his presence. He turned to me and said, “You are nuts. She’ll eat you alive. All the jury will remember is Jordyn telling the jury that David must have stolen the software. Otherwise, he would testify.”
“If she does that, we get a mistrial,” I responded.
Jordyn got huffy. “And just what makes you think that?”
I answered, “The case of Liles vs. Crockett decided by the Honorable Judge Moorman.”
The judge smiled. Jordyn groused. “I’m not familiar with that case.”
I was more than happy to recap the case for her.
“In that case, a civil case by the way, the plaintiff tried to make a big deal about the defendant not testifying. Judge Moorman ruled that since the defendant was under indictment in an unrelated case, the plaintiff’s attorney couldn’t mention his failure to testify in his closing argument. It would violate his fifth amendment rights. The plaintiff took it up to the DC Circuit, and Judge Moorman was upheld. Do I need to file a motion to keep Ms. Duarte from mentioning it during her closing?”
“You did your homework, Mr. Patterson,” the judge said with a smile.
“Thank you, Your Honor. You do have an excellent record on appeal.”
Jordyn tried to interrupt, but Moorman waved her away. “Okay, let’s get this show on the road. Submit your proposed jury instructions, and I’ll look them over during our lunch break. Do you have any more witnesses, Ms. Duarte? No? Then how long do you think you need for closing arguments?”
Things were moving way too fast for Jordyn.
“Judge, I had no idea Mr. Patterson would rest. I need a little time.”
“You’ll have plenty of time during lunch break, Ms. Duarte. I intend to give this case to the jury after lunch. How much time do you need for closing?”
She was obviously flustered but recovered quickly.
“At least two hours, your honor,” she stated firmly.
“I’ll give you thirty minutes. And you, Mr. Patterson.”
“Thirty minutes will be plenty, Your Honor, However I do have several motions. I’ve learned that in patent and trademark cases, procedural motions must be made or waived.”
“Grab a sandwich during the break and come back to chambers. I’ll deny everyone’s motions and go over the jury instructions.”
At least he was honest.
We returned to our tables, and he addressed the jury, “We’re going to take an early lunch break. When we return, you’ll hear closing arguments from both counsels. Then I’ll give you this case to decide. Again, don’t talk about this case with anyone, including each other, until I’ve given you instructions. We’ll be in recess until one p.m.”