Judge Calls His Own Expert at Oracle/Google Patent Trial | Hacker News Reader

Judge Calls His Own Expert at Oracle/Google Patent Trial

law.com

36 pointsgrellas15 comments

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.

  "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.

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.

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.

This seems like one of those ideas that sounds really good until you start to think about it.

Definitely true; the same goes for nearly every idea in history. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.

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.

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.

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.

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.

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.

> "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.

I don't think that's a particularly fair jab considering the government's general track record with recognizing technical expertise.

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

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.

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