

Judge Calls His Own Expert at Oracle/Google Patent Trial - grellas
http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202513513207&Judge_Calls_His_Own_Expert_at_OracleGoogle_Patent_Trial

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grellas
I once clerked for a federal judge who was part of the old-style "hands off"
school of judging - let the parties fashion their own cases and let the court
operate around the edges to make sure they stay in bounds. That style of
judging had its advantages but it was horrible for case management. My judge
wound up with nearly 400 active cases on his docket on average while judges
who more actively managed their cases trended toward the low 200s. Litigants
in any given case, then, might have a sense of having more control over their
cases but the overall pattern was one of interminable delays as dockets and
calendars got clogged with more and more situations where lawyers played out
their antics without too much supervision.

Judge Alsup is of a different school. He is definitely "hands on" and handles
cases in ways that put the parties under significant pressure to trim their
marginal claims and defenses, to scale back on wild discovery forays, and to
give serious consideration to getting to an expeditious trial (or settling)
rather than potentially be steamrolled by the judge (for example, as he has
impliedly threatened to do to Oracle, if it otherwise did not trim its wilder
claims, by sending it packing while he stays the litigation pending patent
reexaminations). One can agree or not with such a style and it can sometimes
border on judicial abuse but it definitely leads to leaner dockets and
calendars that are far less cluttered with marginal garbage than one would
find on the docket of a more latitudinarian judge. A good (but strict and
tough) judge will only play this out in areas where the judge has lawful
discretion to make such calls because trying to force things that are plainly
against the rules _is_ abusive, leads to injustice, and makes for hack
judging. When a judge is tough in the right sense, however, it is amazing to
watch how this can trim the excesses of the adversary system and lead to
better justice than would otherwise be the case if the parties were simply
allowed to run wild.

The arm-twisting that is evident in the appointment of the court's own expert
on damages is a direct message to both parties that they should refrain from
going to wildly speculative extremes and focus on credible claims of damages
only. Since there is Ninth Circuit authority for such an appointment, this is
not overtly out-of-bounds for the judge to do but it is definitely aggressive
and does pose a risk of prejudicing jurors if not properly handled. Reasonable
minds can differ on this one but, in terms of case handling, this is one more
in a series of examples of a judge suffering no nonsense in his courtroom and
is at that level quite admirable.

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saulrh

      "The risk is, it turns into a one-witness trial,"

The solution is to hire a jury of expert witnesses. That should have happened
a long time ago, in fact; letting a judge or jury make decisions about a
specialist subject if they don't have a corresponding degree will only cause
trouble.

The counterargument is that the government can't recognize technical
competence. The answer there is to let the technically competent people select
their own juries, given that they're the ones that can recognize competence.
Just hand jury selection over to, say, the ACM or the IEEE.

I suspect that, as this proposal goes on, you'll converge to a technocracy.
Whether that's good or bad is up to you.

~~~
Tuna-Fish
The primary problem with that isn't that it would turn into a technocracy,
it's that it would instantly make influence over ACM or IEEE extremely
valuable. In a few short years the organizations would degrade into paid
shills.

The various laws mandating standard-compliance already did this to the
standards bodies.

~~~
saulrh
One possibility: spread things out to the point where there are too many
groups to influence and personal relations between engineers overpower what
remains. Instead of calling in the ACM for an audio compression patent case,
ask the Audio Engineering Society and they'll send you six guys that have
known each other for twenty years and have shared beers with every other
person involved in the case.

------
rfrey
_It's a clever strategy for being reasonable and rational when it comes to
damage awards," Baum said. "But I think that if we start going down the road
where we're going to let court-appointed fact finders testify at trial, we
really are giving up some of our belief in the jury system._

It's a pity that the choice is so often between "reasonable and rationale" and
"jury system", especially when it comes down to technical legal decisions like
damages in technical fields like patent law. But it seems that dichotomy does
exist. Being a blow against the jury system in this type of trial is no
argument against the judge's move.

~~~
wdewind
_Being a blow against the jury system in this type of trial is no argument
against the judge's move._

Yes it totally is. He is explaining why someone might think hiring an expert
seems reasonable in this one case, and then extrapolating how that precedent
might get interpreted to undermine the legal system in general.

I also think his fear is pretty understandable: the jury system, although
obviously far from perfect, is a hallmark of our culture's concept of justice,
and allowing a court to appoint an expert, especially in a technology related
case, is a big step towards consolidating power into the judge's hands.

~~~
GFischer
As you know, other countries do not have juries, and while I've seen some
abuse by judges, overall, in my (limited) experience I haven't seen them be
worse than juries.

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crenshaw
But isn't the job here just to testify toward damages, not toward who actually
wins the case.

This seems very reasonable, especially since most criminal cases already have
recommended or mandatory sentencing. They're not using this witness to decide
who is right or wrong, just if there was wrong doing, what would the cost be.
It's like saying that murder is 25 years to life. It's not saying you are
guilty of murder, but if you are, this is what we have determined the penalty
to be.

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mikeryan
Maybe this should be a new litmus test for patents. If you can't explain what
your patent is, its value, and how its being infringed to a reasonably
intelligent person (a judge) then its not patentable.

I mean if the judge needs an expert to explain it to him, who the heck is
reviewing these things for approval.

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mbesto
> _"The risk is, it turns into a one-witness trial," said Henry Bunsow, an IP
> litigator at Dewey & LeBoeuf in San Francisco._

So like, maybe justice will actually be served? Litigators amaze me.

~~~
mikeryan
Our's is an adversarial system. Its one of the cornerstones of our legal
system and its a pretty big deal. This becomes more of an inquisitorial system
which is not what we have.

I think in this case the judge will likely try very hard not to have the
witness provide findings, instead his job may be more explanatory over some of
the more technical aspects.

<http://en.wikipedia.org/wiki/Adversarial_system>
<http://en.wikipedia.org/wiki/Inquisitorial_system>

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geuis
Why is the obvious solution being missed here? In an adversarial trial, there
are usually a minimum of three parties: defendant, complaintant, and court. As
is often the case in criminal and civil trials, both non-court parties bring
their own witnesses and experts to testify. It seems wise to me to also
regularly have a court appointed neutral expert(s) along with experts for the
other parties.

