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More Back-and-Forth on Proposed Jury Instructions/Verdict Forms in SCO v. Novell
Tuesday, March 09 2010 @ 12:30 PM EST

The parties are still going back and forth over pre-trial issues, specifically over the jury instructions and the verdict form. We may see even more on this, because jury instruction and the verdict form come at the very end, so there is still time to try to get it just right. Not that either side will be entirely happy with the result. SCO, of course, wants the last word.

But in truth, the wording of these documents does matter a lot, so it's typical to have quite a lot of discussion on exactly how to phrase things. After all, when the jury is deciding, they will be reading that wording, and going over it with a fine-tooth comb on any issues where they don't immediately agree, most likely. You've seen what a mess the unclear wording in the appeals court ruling created, so imagine if the jury were to be confused into thinking they *have* to rule a certain way if they actually don't, based on a misreading of an unclear phrase.

I thought it was funny yesterday that the parties couldn't come up with a proposed introduction to give the judge to read, so he wrote his own, and when they handed up one they'd finally been able to agree on, he decided to just use his own anyway. It was too late. I expect that incident was inspirational to both parties. And as you'll see in a minute, they are really trying on the jury instructions, with Novell putting the model instructions and both parties' competing phrasing all in one document, so the judge has it all in one place. And then Novell says SCO wants to file its own also.

The latest filings:

03/08/2010 - 784 - REPLY BRIEF in Support of SCO's Objections to Novell's Proposed Jury Instructions filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 785 - REPLY BRIEF in Support of SCO's Objections to Novell's Proposed Verdict Form filed by Plaintiff SCO Group. (Hatch, Brent) (Entered: 03/08/2010)

03/08/2010 - 786 - REPLY BRIEF re 772 Objections to Novell's Proposed Jury Instructions filed by Defendant Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Brennan, Sterling) (Entered: 03/09/2010)

03/09/2010 - 787 - Proposed Jury Instructions by Novell, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Brennan, Sterling) (Entered: 03/09/2010)

If you read the introduction to #787, Novell's Supplemental Submission of Model-Based Jury Instructions, you'll understand what is happening:


Together herewith, Novell is also filing its reply in support of its proposed jury instructions. It is expected that SCO will also be filing a reply in support of its instructions. And each party has previously filed objections to the other’s proposed instructions.

The purpose of this submission is to mitigate the burdens imposed on the Court by the parties’ other instruction-related submissions in three ways: first, by collecting Novell’s and SCO’s respective proposed instructions into a single document, for ease of reference and juxtaposition; second, by also collecting pertinent model instructions into the same document, and juxtaposing them with the partisan proposals of both parties; and third, by offering modelbased alternatives to both SCO’s and Novell’s own previous proposals.

With just three exceptions, each major section below has five parts: Novell’s proposed instruction(s) on a given topic, SCO’s corresponding instruction(s), applicable model instruction(s), a proposed model-based alternative to the parties’ previously-proposed instructions, and a brief explanation of any variations in the proposed alternative from the model(s). 1 In almost every case, the model-based alternative either is drawn verbatim and without alteration from the models; or is derived by editing the model only enough to either make it reciprocal or adapt it from the personal defamation to the slander of title context.

And SCO *still* wanted to file its own on top of all this.

: D

The other filings are reply briefs in support of their own positions, answering the other side's objections to verdict form phrasing. I haven't read them yet, so that's just going by the titles.

What happened yesterday with the introduction sends the parties a message about the judge's desire to have timely filed joint proposals when he asks for them. This is an "or else" judge, I think we could say. SCOfolk got used to Judge Dale Kimball's more patient style.

Both styles work in different ways. The advantage of Judge Kimball's style is that complexities are more fully grasped prior to a ruling. But it takes a long time. Judge Ted Stewart says what he means and means what he says, which forces the buggy up the road, whether the old nag feels it is ready to go or not. But the good thing I've noticed about Judge Stewart also is that if he sees he's wrong, he doesn't mind changing his ruling. So that is the fail safe, and it's also why I think we will see more discussion on some issues, even some already decided.


More Back-and-Forth on Proposed Jury Instructions/Verdict Forms in SCO v. Novell | 82 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: PolR on Tuesday, March 09 2010 @ 12:36 PM EST
If any is needed.

[ Reply to This | # ]

OT here
Authored by: PolR on Tuesday, March 09 2010 @ 12:37 PM EST
If you want to post about something that isn't the main show.

[ Reply to This | # ]

Newspick here
Authored by: PolR on Tuesday, March 09 2010 @ 12:39 PM EST
Please don't forget to place the news title in the comment title.

[ Reply to This | # ]

COMES here
Authored by: PolR on Tuesday, March 09 2010 @ 12:41 PM EST
The Comes volunteers never receive enough thanks. I know this is a mighty
interesting week but the Comes shouldn't stop. The hard work of the volunteers
is much appreciated.

[ Reply to This | # ]

The problem with the judge...
Authored by: Guil Rarey on Tuesday, March 09 2010 @ 12:57 PM EST
Is not for him to own up when he sees he is wrong...

It seems to be a problem for him to see some cases where he is obviously,
demonstrably, off track, and straining to split non-obvious, unrealistic hairs
to stay there.

I'm not sure I agree with you, PJ, about the reasonableness of this judge.

If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con

[ Reply to This | # ]

What will the jury have when the doors are closed?
Authored by: capt.Hij on Tuesday, March 09 2010 @ 12:59 PM EST
But in truth, the wording of these documents does matter a lot, so it's typical to have quite a lot of discussion on exactly how to phrase things.

I just want to second this sentiment. I served on a jury once, and we paid very close attention to the instructions that came from the judge. We requested multiple times that some part of the instructions be read back to us. There were some legal complexities that we did not fully comprehend, and in the state of NY we were not allowed to write the instructions down or get a written set of instructions.

A couple of times we even divided up the responsibility between us to concentrate on different parts of the instructions as they were read. We tried very hard to get it right and follow the specific instructions given to us. We were not legal experts but took our responsibility seriously.

My question is how does this work in Utah? Are the jurors allowed to take notes and to get a copy of the written instructions? This is a complicated case so how much information and in what form will the judge let them take back into the room with them.

[ Reply to This | # ]

I hate to say it but the Judge is Growing on Me
Authored by: Anonymous on Tuesday, March 09 2010 @ 01:32 PM EST
I know we were really worried early on about slant one way
or the other.

I think the big there here is that the judge is tripping all
over himself to obey what he percieves to be the
instructions from the 10th circuit to give the Jury as much
purview as possible in the case.

The further that we get into the process, I still have some
concerns, but recently we are starting to see more positive
indications that he is willing to question even himself in
the application of the law, and that he is willing to force
SCO to come to the table when he tells them to and not a
moment later.

"Ita erat quando hic adveni."

[ Reply to This | # ]

Utah Law so Utah damages?
Authored by: Anonymous on Tuesday, March 09 2010 @ 03:19 PM EST
784 - REPLY BRIEF in Support of SCO's Objections to Novell's Proposed Jury
Instructions filed by Plaintiff SCO Group.

Page 28:

C. SCO disputes Novell’s proposal (at 28-29) to have an instruction
that states that a
conditional privilege is abused only if the defendant has acted “solely” with
malice. The plaintiff
need not show that the statements at issue were made “solely” out of spite or
ill will in order to
show that the privilege has been abused. Utah law provides that the privilege is
abused if the
defendant has acted with “malice.” (Docket No. 75 at 11-15 (citing authority).)
The jury should
be told that standard. 5

It appears that SCO are applying specifics of Utah law here - I have no idea how
to check how this compares with, for example, California Law.

If, however SCO prevails due to this point, and if the law in other states
requires “solely” with malice can we assume that any damages calculations would
therefore be only for business lost in Utah?

[ Reply to This | # ]

786- Biggest part is reading appeals stuff into instructions
Authored by: Anonymous on Tuesday, March 09 2010 @ 03:35 PM EST
This Court ruled that it was improper to read to the jury the Tenth Circuit's finding that the AP A is unambiguous; it should likewise rule that the Tenth Circuit's finding that Amendment NO.2 is ambiguous is not a factual finding that binds the jury.
Like that they make it work both ways... if they can't have findings from other decisions in play, neither should SCO, and if he rules the other way, then it's a matter for appeal. Nice.

[ Reply to This | # ]

786 unclean hands
Authored by: Anonymous on Tuesday, March 09 2010 @ 03:44 PM EST
... Nice, even though it won't be tried, they get these ideas in his head:
Lynn v. Duckel, 46 Cal. 2d 845,850 (1956) ("[W]henever a party who, as actor, seeks to set judicial machinery in motion and obtain some remedy, has violated conscience, good faith or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine.")....The UNIX copyrights are indisputably connected to this suit. Therefore, SCO's misconduct in connection with the copyrights may constitute unclean hands.
The Tenth Circuit's decision does not write the writing requirement out of the Copyright Act. 17 U.S.C. § 204(a). SCO's objections to Novell's instructions on contract interpretation and extrinsic evidence preview SCO' s argument that the jury should disregard the written contracts altogether. This instruction is therefore necessary to keep the jury from being misled into thinking that Novell might have transferred copyrights by something other than the writings. The jury will have to decide whether the APA, as amended, transferred copyrights; but it would be contrary to law for the jury to conclude that copyrights were transferred by some other means.
SCO criticizes Novell's proposed verdict form as "unnecessarily long and complicated," and insists "no reasonable set of jurors could be expected to follow it." (SCO's Obj. at 38.) Tellingly, SCO has failed to identify any specific question(s) or instructions in Novell's form that will confuse anyone. Novell, like the framers of the Seventh Amendment, does not share SCO's dim view of jurors. Novell's form is clearly and unambiguously signposted, and is no longer or more complicated than necessary to help the jury correctly navigate a somewhat complex combination of issues. Anyone intelligent enough to qualify as a juror will have no difficulty filling it out correctly.
Love me the MoFos on that last one...(emphasis added)

[ Reply to This | # ]

Timing of approval of jury Instructions
Authored by: WWWombat on Tuesday, March 09 2010 @ 04:37 PM EST
Reading the replies, and the vast difference of opinion between the two sides,
it strikes me that the jury instructions represent the target of your legal

Whatever case you have to try to show, or defend, you probably want best laid
out in the minds of the jury in the same way that they will be instructed.

So, if the jury instructions aren't actually approved until half way through the
trial, aren't the 2nd party at an automatic advantage? The 1st party might have
presented their case, but they then find that they've shot for the wrong

Have cases been appealed simply due to the timing of the approval of the

[ Reply to This | # ]

More Back-and-Forth on Proposed Jury Instructions/Verdict Forms in SCO v. Novell
Authored by: PolR on Tuesday, March 09 2010 @ 05:38 PM EST
Am I right to assume that there was no court room trial activity today? This
wrangling on jury instructions means they can't do anything in front of the jury
until this is resolved. Therefore no courtroom trial activity.

Am I correct?

[ Reply to This | # ]

tSCOg simplified Jury Instructions
Authored by: deck2 on Tuesday, March 09 2010 @ 06:25 PM EST

After reading this, this is my take on tSCOg Jury Instructions:

Novell transferred copyrights to SCO             __Yes

Novell should pay billions of dollars to tSCOg. __Yes

[ Reply to This | # ]

Law Clerk
Authored by: WWWombat on Tuesday, March 09 2010 @ 11:07 PM EST
How much of these responses will be read and researched (& subsequent
findings written) by Judge Stewart himself, and how much will be done by a law

I'd assume that someone else was having to toil on these while the court was in

[ Reply to This | # ]

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