It is my observation that judges are willing to let a lot of things slide. Too many things, I would say. Lawyers and parties to litigation can often lie, mislead, flout court orders, and generally play fast and loose with the rules, and most of the time, nothing happens to them. In the Apple v. Samsung patent case, Samsung’s counsel broke a cardinal rule. During a jury trial, he released excluded documents to the press, and indicated that those documents should be shown to the jury. Juries are only supposed to hear evidence within the four walls of the courtroom — regardless of whether there might be more information out there. That’s why judges have been ordering juries to hand over their cell phones during trial, and have long ordered them not to investigate the case on their own. Remember the court system isn’t called the “Truth System”, it’s the “Justice System”. Obtaining truth is probably too much to ask, but we can try our best to be just.
John Quinn, Samsung’s attorney, poisoned the well when he decided to release the documents to the public. The statement he approved states:
“The Judge’s exclusion of evidence on independent creation meant that even though Apple was allowed to inaccurately argue to the jury that the F700 was an iPhone copy, Samsung was not allowed to tell the jury the full story and show the pre-iPhone design for that and other phones that were in development at Samsung in 2006, before the iPhone. The excluded evidence would have established beyond doubt that Samsung did not copy the iPhone design. Fundamental fairness requires that the jury decide the case based on all the evidence.”
Samsung made public two Powerpoint presentations totaling nine pages, which purport to show, among other things, that its phone predates the iPhone. Apple called the action “contemptible,” and Judge Lucy Koh called for an immediate meeting with Quinn.
Quinn has already exhibited his willingness to approach, if not cross, the line between zealous advocacy and unethical conduct. Claiming that Apple had “opened the door” to discussion of Samsung’s earlier phone, Samsung asked the court to reconsider. Judge Koh, noted that “Samsung has filed like 10 motions for reconsideration,” and told Quinn to sit back down. Quinn told Koh that he was “begging the court,” and asked “what’s the point in having a trial [without the excluded evidence]?” Koh had made up her mind and said, “Don’t make me sanction you. Please.’”
Apple has asked for judgment in its favor. It ain’t happening. At best Judge Koh will reserve ruling until after the jury trial, hoping the jury decides in Apple’s favor so she doesn’t have to exercise her discretion.