Your Jury Doesn't Care About Patent Infringement if the Defendant Didn't Copy It
I'll never forget watching an ABTL mock trial with two juries equipped with focus group dials. The mock trial concerned an allegation of copyright infringement and the two juries were comprised of the people likely to be hearing the evidence (regular people) and the people likely to be presenting it (lawyers).
Each mock juror in a focus group jury holds a dial. If the attorney questioning or the witness answering is making a favorable impression, the juror dials UP; if making an unfavorable impression, the juror dials DOWN (and you thought Coliseum days were over); and, if making NO impression, keeps the dial in the middle.
The audience watched a screen over the trial scene carrying two live graphs: one charting the lay jury's reaction and one charting the attorneys'.
Here's what happened -- the entire day. Whenever the lawyer or witness scored a "relevant" point -- established an essential element of his cause of action or undermined witness testimony that had been legally unfavorable, the attorney jury dialed up. The lay jury flat-lined. Whenever a lawyer or witness had a "relevant" point scored against them, the lawyer jury dialed down. And the lay jury flat-lined.
The lay jury dialed up when the witness seemed to be telling the truth of his or her experience (the story had narrative coherence) and dialed down when the witness appeared to be evasive.
Then we watched the lay jury deliberate and they did what juries do everywhere -- they cherry-picked the evidence that supported the party they believed and made facts up when challenged by jurors who contradicted them.
"She just made that up out of whole cloth" I remember saying to a fellow audience member.
And then every single juror who wanted that party to win accepted the new "fact" and incorporated it into their "story" of the case.
Got it? The jury doesn't care about your legal cause of action. Now Stanford Law School tells us that most patent infringement cases don't involve copying while trial consultants instruct that juries only care if inventions are copied. That's big (and unexpected) trouble for patent infringement plaintiffs and prosecutors. See How Juror Misconceptions Affect Patent Trials at Law.com here. Excerpt below.
[P]atent trials get played out on an emotional playing field, as well as a legal and technical one. Veteran trial lawyers and jury consultants say that most Americans think that infringement means inventors claiming they've been copied, their ideas "ripped off" or stolen. "Jurors will almost always talk about copying," says jury consultant Doug Green, even when copying has not been alleged. The idea that copying is at least unethical, if not illegal, is wired into Americans from grade school. Besides, juries don't like the idea of a plaintiff demanding money from a competitor who developed a product independently but simply lost a race to the patent office -- even though that's exactly what the law provides.
New research done using Stanford Law School's new IP Litigation Clearing House -- a searchable database of 78,000 intellectual property cases filed since 2000 -- demonstrates that formal allegations and findings of copying are actually quite rare in patent disputes. "No one seemed to know whether patent infringement defendants are in fact unscrupulous copyists or independent developers," says Stanford Law School professor Mark Lemley. Co-authored by Christopher Cotropia of University of Richmond Law School, the new research, which is published online by Stanford, attempts to answer that question, and does: It's overwhelmingly independent developers that are getting hit with patent lawsuits.
And if you want some seriously and steadily good advice about persuading your jury to do the right thing (or settling your case short of trial in light of the jury's probable pre-dispositions) put Anne Reed's fabulous ABA Top 100 Legal Blog Deliberations on your news reader.
This is fascinating.
Very disconcerting to be practicing in a field in which the rules of game, viz rules of evidence, actually prevent performance.
Trial lawyers, jury consultants and mediators share the same task: taking an injustice that has been stripped of its natural narrative, pathos, ambiguity, and three-dimensionality, and re-translating it back into human terms a jury (or the litigating parties who do not share their lawyers point of view) can understand; and, with which jury and parties can empathize.
It was a step forward for the law to place "reason" above emotion and "principle" above personalities. But in 2009, we know that reason and emotion are inseparable.
So we struggle against the law's constraints and end up making the entire enterprise seem either foolish (suing McDonalds for obesity) or cruel (imprisoning petty criminals for life on their third petty conviction).
All I can say is this: story story story story story story story story.
"But in 2009, we know that reason and emotion are inseparable."
You might find this valuable: http://plato.stanford.edu/entries/emotions-17th18th/
My own quick thought is that a) juries look for lies to judge because it is something they feel they can do, and b) the legal elements required in a cause of action aren't something we require juries to be able to identify.
Perhaps we should train jurors?