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How the Trial Will Go, Beginning Tomorrow (SCO v. Novell)
Monday, April 28 2008 @ 08:59 PM EDT

The trial in SCO v. Novell -- which has morphed into exclusively Novell's counterclaims against SCO -- begins tomorrow morning, and the parties have filed a Joint Pretrial Stipulation [PDF] and then an Amended one [PDF]. For purposes of this trial, Novell is the plaintiff and SCO the defendant, so Novell will be going first. Thanks to the Stipulation, we know how the trial is structured. Each side will limit itself to 10 hours. It's 10 hours sort of like football, though, so don't imagine it will all be over in, say, a long day or two days. A football team might have a minute left on the clock, but it takes a half hour to play it out. Similarly here, 10 hours each doesn't count things like conferences with the judge at the bench and things like that. It will go like this:
  • Novell's opening statement
  • SCO's opening statement
  • Novell's affirmative witnesses
  • SCO's affirmative witnesses
  • Novell's rebuttal witnesses, if any
  • SCO's sur-rebuttal witnesses, if any
  • SCO's closing statement
  • Novell's closing statement

They've also exchanged lists of witnesses they will call and in what order, and they agree that if there are to be any changes, they'll each make an effort "in good faith" to notify each other with at least 24 hours' notice, if possible.

I know what you're thinking. SCO. Good Faith. Hardy Har. But Novell got SCO to agree that this stipulation isn't a green light to suddenly add surprise witnesses. If SCO tries anything like that, the stipulation can be pointed to, and SCO will need to present a very good reason. Still, I wouldn't be amazed if there were a surprise or two here or there which SCO will say it couldn't help. They have a history of loving surprises.

To me, the biggest surprise is that so far as we know, SCO isn't calling any witnesses, like Microsoft or Sun, to tell the court what its SCOsource license was for. SCO needs somebody to say it was for UnixWare. That's a huge and stunning blank.

To be able to stick to 10 hours each, they also decided to stipulate to waive objections to the admission of certain exhibits, which they list on an attachment, but it's a list we can't really comprehend now. Those who attend might try to keep track of the exhibits as they are offered. Then we'll be able to piece it together. If you are curious, here's what they won't have to take time to do, thanks to the stipulation, for the exhibits on the list.

They aren't agreeing to the content being relevant or accurate or material or how much weight any exhibit has, and they explicitly restrict this stipulation to this trial only. Any later litigation after appeal, well, it's back to GO on these exhibits and either side can object. And they are each free to argue to Judge Kimball that hearsay, for example, in an admitted exhibit should be afforded no weight.

They also agree to exchange any demonstratives no less than 24 hours before they use it with a witness at trial. They can modify the demos, though, as the trial progresses and evidence is presented, so long as they tell each other as soon as practical. This doesn't apply to the summary judgment motions or the opening or closing statements. They can show and tell whatever they please in those, without sharing first. Demonstratives are graphics and charts and graphs and stuff like that. It can, in our digital age, also be animation, if the court has the facilities, and large firms may even have an in-house graphics department.

Here are the filings:

04/28/2008 - 526 - STIPULATION (Pretrial) by Novell, Inc.. (Attachments: # 1 Exhibit A)(Sneddon, Heather) (Entered: 04/28/2008)

04/28/2008 - 527 - STIPULATION (First Amended Joint Pretrial Stipulation) by Novell, Inc.. (Attachments: # 1 Exhibit A)(Sneddon, Heather) (Entered: 04/28/2008)

I think it's sort of obvious what the various categories of witnesses are, but if not, here's a breakdown of how evidence is presented at trial, and how witnesses are used, on Law.com's Dictionary. And a court can itself call witnesses, according to the Federal Rules of Evidence, not that it happens often that I've seen. But wouldn't it be a hoot if Judge Kimball called Microsoft to come and testify, which would lead to cross examination, and ... I guess I'm getting too excited, huh? But in a perfect world, we'd get to find out exactly what Microsoft meant by telling the world it had licensed SCO's patents and such, when SCO had exactly no patents at the time. I'd like to ask them, "What due diligence did you do?" "Why were you interested in a license?" And "what have you used the code for?" "Were there any changes to the agreement that you caused to come into being?" Like offering more money if SCO agreed to make a big media splash about Linux allegedly having legal problems? Just asking. Oh. Then I'd want to ask, "Did Microsoft's server offerings go up in adoption in comparison to Linux following the SCO announcement of litigation?"

Confess. You want to know too. And I'm just guessing that might be exactly why SCO isn't calling any witnesses from Microsoft or Sun -- the scary cross examination possibilities.


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