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To read comments to this article, go here
Judge Kimball Sets the Rules of the Road for SCO v. Novell
Sunday, August 19 2007 @ 11:30 PM EDT

Here's Judge Dale Kimball's Memorandum Decision and Order, in which he sets deadlines for what's left to accomplish prior to the date the trial is set to start. You can feel as you read it just how close we are now. It's getting very real to me.

The parties are still arguing about pretrial disclosures, last we heard, and then after Judge Kimball's ruling on the summary judgment motions pulled the rug right out from under SCO's case, we heard they were discussing whether a jury is needed or not and what the ruling meant in all its particulars. But September 17 at 8:30 AM is the date set for the trial to begin. Judge Kimball states in this document that while it was originally pencilled in to last 3 weeks, it should be "substantially shorter" now.

I'll say. Except for SCO sobbing. That might take quite a while.

What happens between now and then? That's what this order tells the parties.

The first item already happened, on Friday, the joint statement on what is left to go to trial: pretty much nothing on SCO's side and pretty much everything on Novell's, except for some things it doesn't even care about pursuing now.

Next after that come the motions in limine. The deadline for that is Aug. 24. And like all motions, there will be motions in opposition, and the deadline for that is Aug. 31. Then the reply memo, if any, must be filed by Sept. 4. If the judge feels he needs a hearing, he'll let them know.

Next in time is voir dire and jury instructions. Here are model Utah jury instructions, explaining what they are, namely what the judge explains to the jury about the laws that relate to the case and what the jury's job is. The parties give the judge their proposed versions, just like with orders, but he doesn't have to follow them. And if they decide not to even have a jury, you don't need voir dire or jury instructions at all. This page will give you an idea of what voir dire is like, at least in this Indiana judge's courtroom. And here is a report [PDF] from a Utah Committee that met to talk about voir dire and other such things and how they should be done in a perfect world. It's only for those who simply can't get enough of reading about voir dire and jury duty.

Voir dire, the short version, is the process whereby the judge and the attorneys try to weed out biased potential jurors by asking them questions. "How do you feel about executives who falsely accuse innocent people of copyright infringement when they knew they didn't own the relevant copyrights?" Nah. It's a bit more subtle. But if I was in the jury pool, and they found out I wrote Groklaw, I'd be out on my ear in five seconds flat. Three. One. Just swoosh. Because, although I am not biased, I know too much to be a good juror. They want jurors to know very little so they can limit their deliberations to what is allowed in evidence. I already have a formulated opinion based on a lot of materials we researched here that may not even be allowed at trial. And they'd be worried I couldn't partition out what I know, or I'd tell the other jurors the rest of the story. So I couldn't really be a juror. I could, actually, but they would worry I couldn't and that I'd doze off and talk in my sleep even if I promised to try to stick to the evidence as presented.

I'd love to be a juror in SCO v. Novell. And how! Wouldn't you? Maybe they'd allow absentee ballots? Like servicemen? Heaven only knows I feel like we've been through a war. I know. Digital voting machines. Please, please, please? So we can rig it from afar? Just kidding. Paralegals are usually tossed and never get to be on juries. Lawyers too. It's really hard to get chosen as a juror if you work in the legal field. It's not impossible, but it's hard.

Ditto with the next item, special verdict forms. You don't need them if there is no jury to give the forms to. You can find an explanation of what that is here, but in brief it's a form the jury sometimes has to fill out giving reasons for the decision it reached. Obviously, that isn't needed if there is to be no jury.

As you see, a lot of work could be tossed right out of the agenda, if the parties could agree a jury isn't needed, which is, I'm sure, appealing to Novell, whose lawyers are not working for free. But if they don't agree to that, they each must file all this paperwork, and in the case of special verdict forms, they do it separately, so they can then object to the other's special verdict form, if they wish. Interestingly, the parties have to file the form in WordPerfect format.

OK. Next? They can file with the judge proposed jury instructions. There's a template for civil trials, as you saw, the stuff the judge tells them before, during and at the end of the trial about what the law is and what they can and can't consider. Judge Kimball says the parties can just use the template, but law firms of this caliber don't like to do that. They like to tweak everything in their favor. And jury instructions actually matter a lot. So Judge Kimball has a plan to streamline things. He tells them they have to agree to any modifications and tell him jointly why they think it should be modified. His Honor didn't just fall off a turnip truck, you know. And he tells them not to send him the same wording that he already has in his stock instructions. He's dealt with lawyers before, trying to mold the instructions to suit their case. Again, though, you don't need jury instructions if there is no jury.

That's not the end of this topic, though. If either side has additional instructions, things they'd like the judge to instruct the jury just for this case, they have to serve them on each other, then meet and duke it out and then jointly submit one proposed set of instructions. If they just can't agree on one or two items, they can separately submit those to him. That all needs to be done by Aug. 29. Then by Sept. 5th, each can file objections to whatever the other side filed separately, which must contain case citations and a "concise" argument explaining why the other side's instruction is improper. Then the other side writes up why it opposes, giving an alternative, and then a reply can be filed opposing the objection.

Did you realize there was so much left still to argue about even before the trial gets going? My mind's eye is flooded with possibilities. SCO submits a list of instructions it would like the judge to give to the jury: "If you feel pity for SCO having no case left, you must give them a billion dollars." No. That wouldn't fly. Novell's -- "If they have no case, you must erase." I know. I'm being silly. But the trial is so, so stacked against SCO, I can't help but kid around. It's like two kids on a see saw, one of them 100 pounds heavier. The littler kid is stranded up in the air, his little legs dangling, with no hope of getting down unless the heavy kid decides to have mercy. And what motive does Novell have to do that?

Let me try to get serious. The next item is trial exhibits. There's a local rule setting forth how you are supposed to mark them a certain way and each party is to provide an exhibit list to the clerk to give to the judge on the first morning of the trial. This is a list of exhibits that may or may not be allowed, depending on the judge, a list of what each plans to introduce. But it's up to the judge ultimately, one by one, as they are introduced.

Now, remember the pretrial order the parties got an extension to file? The deadline to finally file that is Sept. 7. The pretrial attorneys' conference is set for before that date, and they are told in this order that it will still be held. That's where they discuss all of the above and work out any difficulties. And whatever the results are, they are to include that information in the pretrial order when they submit it, including which attorneys were there at the conference.

One item that is always included on that conference agenda is a possible settlement. The judge includes that and asks to be informed if they work one out. In a normal universe, I'd expect one in a fact pattern like this one, where SCO already lost everything that matters. Maybe if the parties can agree on a sum for what SCO owes Novell, but it seems unlikely so far. But you can't rule it out. Most cases do settle, you know, instead of going to trial. The lawyers can figure out what will happen at trial, because they're experienced and they know the law and the judge now. So a party that figures the cards are stacked against him will be inspired to try to settle things on terms he can stand rather than leaving it up to an unknown jury. Plus you can save a ton of money if you settle. Trials are expensive. So here, where SCO has already been found liable for conversion and knows it must pay Novell something, a lot, it may try to offer a sum high enough to get Novell to settle, to avoid the annoyance of a trial, but low enough that SCO doesn't keel over dead on the spot. This is a company that really doesn't want to go bankrupt just now. But that's in a normal universe, which this isn't. Very little in this SCO litigation has been typical. I guess that's one reason it's so addictive.

*****************************

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

_______________________________________________

THE SCO GROUP, INC.,

Plaintiff,

vs.

NOVELL, INC.,

Defendant.

________________________________

MEMORANDUM DECISION AND
ORDER

Civil Case No. 2:04CV139DAK

_______________________________

This case is set for a twenty-one day jury trial to begin on September 17, 2007, at 8:30 a.m. In order to expedite the conduct of the trial in this case, counsel are instructed as follows:

A. Joint Statement

In light of the court's Memorandum Decision and Order on the parties' pending motions for summary judgment, the court orders the parties to submit a joint statement identifying the remaining claims in the case that are proceeding to trial and the anticipated length of the trial. The court expects that the length of the trial will be substantially shorter. This statement must be filed by Friday, August 17, 2007.

B. Motions in Limine

All motions in limine must be filed by August 24, 2007. Memoranda in opposition to any motions in limine must be filed no later than August 31, 2007. Reply memoranda, if necessary, must be filed by September 4, 2007. The court will notify the parties if a hearing will

be held on the motions.

C. Proposed Voir Dire, Jury Instructions, and Special Verdict Form

1. Proposed Voir Dire

The parties must submit any proposed voir dire no later than September 10, 2007.

2. Special Verdict Form

The parties must submit a proposed special verdict form no later than September 10, 2007. In addition to filing the special verdict form electronically, the parties must email a copy of the special verdict form to [email address redacted] in Word Perfect format. Any objection the parties have to the other party's proposed special verdict form shall be filed by September 13, 2007.

3. Jury Instructions

(a) stock instructions

Upon request, the court will provide the parties with its stock jury instructions for civil cases. The court will give its stock instructions applicable to this case unless both parties agree to modify them and provide convincing arguments for such changes. The parties shall not submit stock instructions that deal with the same subject matter as the court's stock instructions. When submitting their instructions, the parties shall indicate in a list to the court which of the court's stock instructions should be given. The parties need not resubmit the court's stock instructions.

2

(b) additional instructions

All additional jury instructions must be submitted according to the following procedure:

1. The parties shall serve upon the opposing party their proposed jury instructions by August 20, 2007. The parties must then meet and confer to agree on a single set of instructions. The parties are required to jointly submit one set of stipulated final instructions.

2. If the parties cannot agree upon a complete set of final instructions, they may submit separately those instructions upon which they cannot agree. However, the parties are expected to agree upon the majority of the substantive instructions for the case.

3. The stipulated instructions and each party's supplemental instructions must be electronically filed with the court by August 29, 2007. In addition to electronically filing the jury instructions, the parties shall also email a copy of the instructions, without citation to authority, to [email redacted] in Word Perfect format.

4. No later than September 5, 2007, each party must file its objections to the supplemental instructions proposed by the other party. All such objections must recite the proposed disputed instruction in its entirety and specifically highlight the objectionable language in the proposed instruction. The objection must contain citations to authority and a concise argument explaining why the instruction is improper. If applicable, the objecting party should submit an

3

alternative instruction addressing the subject or principle of law.

5. No later than September 12, 2006, each party may file a reply to the opposing party's objections.

D. Trial Exhibits

Pursuant to Local Rule 83-5, each party is required to pre-mark all exhibits intended to be introduced during trial and prepare an exhibit list for the court's use at trial. Exhibit labels (stickers) are available at the Intake Desk in the Clerk's Office. The standard exhibit list form is available on the Court's website (www.utd.uscourts.gov). Plaintiffs should list their exhibits by consecutive numbers and defendants should list their exhibits by consecutive letters, unless authorized by the Court to use a different system.

Do NOT file the exhibit list or the exhibits. The exhibit list is to be provided to the Courtroom Deputy Clerk on the first morning of trial; the exhibits are to remain in the custody of counsel until admitted as evidence by the Court.

E. Pretrial Disclosures, Pretrial Order, and Attorneys' Conference

This Trial Order does not affect the parties' pre-trial requirements under the Federal Rules of Civil Procedure. The parties shall submit their pretrial order to the court no later than September 7, 2007. The form of the pretrial order shall conform generally to the approved form in Appendix IV to the district court's Local Rules of Practice. The parties shall also still hold their pre-trial attorneys' conference before the date for submitting the pre-trial order to discuss settlement, a proposed pretrial order, exhibit lists, jury instructions, and other matters that will aid in an expeditious and productive trial. The pretrial order submitted by the parties shall

4

identify the date counsel for the parties' held their attorneys' conference and the counsel present for the conference.

F. Settlement

In the event that a settlement is reached between the parties, the court should be notified as soon as possible.

DATED this 10th day of August, 2007.

--[signature]--
DALE A. KIMBALL
United States District Judge

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