wonder about that. But I have great faith in
the jury system. I have been pleased pretty
much in every case—how the juries have
handled the facts of the case.
Q: So you wouldn’t have had those
doubts if the plaintiff had been another
company rather than a widow.
A: That’s more typical. And the disparity
between big company and small
company—it just doesn’t make much
difference. We usually debrief juries after
a jury trial. We try to talk to jurors and find
out what drove their verdict. And I really
haven’t heard that “size of a company” has
been a big factor.
Q: Any surprises from these debriefings?
A: There are always surprises. I can tell
you one that stands out from a trial I had
for a company called CalComp against
LaserGraphics. We won that case, and
afterwards we were debriefing the jury
and … There’s all these studies done:
Male lawyers, female lawyers, is there an
advantage or a disadvantage? I have read
that one advantage to being a female
lawyer is that people think you’re more
credible. My opposing counsel on the
case was a very good attorney. It was a
long trial— 12 weeks, 13 weeks—and we’re
debriefing the jury and a couple of the
guys on the jury came up to me and said,
“You know, it really made us mad when
Mr. Oswald objected when you were
questioning the witnesses.” I looked at
them and said, “Oh?” They said, “Well,
you know, it just seemed like he was
such a bully.” And I thought, “Wow.”
Certainly I was objecting when he was
questioning witnesses.
It’s also interesting to get their
perceptions of the witnesses. You work
hard to prepare your witnesses for jury
trial: to explain to them courtroom
demeanor, and how important it is to
look at the jury, to not lose your temper,
all of those things. Typically the lawyers
on both sides are aware of witnesses
they think are more credible than others;
but what’s interesting is when the jury
picks up on the same thing. They tend
to. They tend to pick up on everything
going on in the courtroom. They can tell
the relationships of people who come to
watch the trial. You tell everyone on your
side of the case that when they come to
court, they are not to express emotion
while the other side is up there testifying;
they are to be polite and quiet and
observe appropriate demeanor. Because
the jury watches everyone.
Q: Is there a concern about
overpreparation—about preparing
witnesses away from authenticity? Or at
least the perception of authenticity?
A: There’s always a danger that if you scare
a witness about, you know, “Look at the
jury, sit up straight, answer the question,
don’t volunteer,” that you’ll make your
witness paralyzed or wooden.
I’m not a fan of overpreparation. I do
fairly limited preparation of witnesses—
for deposition or for trial. Certainly I go
through the issues with them, find out
what they know. If it’s my witness, I’ll tell
what questions I’m going to ask. If it’s for
cross-exam, I’ll tell them what to expect.
But I keep it to a minimum of time. And
I usually tell them to relax the afternoon
before they have to testify. For exactly
the point you’re making: I think a lot of
lawyers frighten their witnesses. They
drill them on questions. They just drill
them so that they’re almost robotic. Even
when they’re telling the truth they look
like they’re not telling the truth, because
they have that look on their face: “Wow,
is this the right answer? Am I doing the
right thing?”
Q: Is it advantageous for you, in this
regard, to represent companies? Since
your witnesses might be CEOs who are
used to public speaking?
A: It’s very unusual in an IP case to have
your witnesses be people who have
testified a lot—if they’ve testified at all.
Typically your witnesses are going to be
scientists and engineers. They’re hard
to prepare, because, depending on the
person, some are not particularly verbal.
Q: So for CEOs, you try to get them to
tamp it down a bit. Scientists, bring it up
a notch.
A: I’ve met middle management people
who are great speakers and great with the
process. I’ve met people who are wonderful
people but who freeze up no matter what
you do. You work with all types.
Today, in the IP world, you have a lot
of people whose native language is not
English. That creates a lot of issues at a
deposition. You really have to think about
whether you need a translator.
Q: I assume there’s a disadvantage to
having a translator.
A: There’s almost always a disadvantage to
having a translator. It makes the process a
lot more cumbersome but sometimes you
can’t avoid it. We have a trial coming up
and we’re going to need some translators
for our witnesses. Some of them are
German. They speak English … but not well
enough.
Q: That also puts a huge burden on the
translator, I would imagine.
A: And sometimes you have competing
translators. I had a deposition of a
Chinese witness a few years back and
there was this concern: You’ve got a
translator and she looks pretty good, but
we think we’ll have our own there, too.
Now I’ve never seen a court allow that.
There are certified translators whom the
court accepts and you just need one.
But a lot of times at deposition you’ll
have two because the other translator is
