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Novell Asks For Extension to File with Supreme Court & Judge Stewart Issues Trial Order - Updated
Thursday, February 04 2010 @ 06:14 PM EST

Novell has filed a second request for an extension of time to file its appeal with the US Supreme Court. It would like until March 4th.

And Judge Ted Stewart has issued his trial order for the trial in Utah in SCO v. Novell, which begins on March 8:

02/04/2010 - 626 - TRIAL ORDER with instructions to counsel: 15 day Jury Trial set for 3/8/2010 08:30 AM in Room 142 before Judge Ted Stewart. Final Pretrial Conference set for 2/25/2010 02:00 PM in Room 142 before Judge Ted Stewart. Signed by Judge Ted Stewart on 02/04/2010. (asp) (Entered: 02/04/2010)

More exactly, the judge tells the parties to come up with a joint trial order by the February 25th pretrial conference. He doesn't know these lawyers yet as well as we do. They don't agree on much of anything. He also provides instructions on how to file jury instructions together, unless they can't agree and then he tells them to file separately, but "the court expects the parties to meet, confer, and agree upon the wording of the substantive instructions for the case." That's exactly what they couldn't do the first time [PDF]. This is what they finally came up with.

They have to file 5 business days before the trial and any objections have to be filed 2 days before the trial. "Argumentative instructions are improper and will not be given," the judge writes. Well. Back to the drawing board for Boies Schiller, I'm thinking.

Both sides also have to file trial briefs at least 5 days before trial, listing all witnesses and a "short statement as to the substance of that witness' testimony." Ditto on the timing of Motions in Limine. I would think that might be helpful to have in hand when composing one's appeal.

He also provides rules for courtroom behavior, such as standing when addressing the court, and stating the legal grounds for any objections. The lawyers can't just say, "objection" or even "objection ... hearsay". They have to say, "Objection... hearsay and inadmissible under Rule 802." Oh, they can't make faces at each other either:

(h) Address all remarks to the court, not to opposing counsel, and do not make disparaging or acrimonious remarks toward opposing counsel or witnesses. Counsel shall instruct all persons at counsel table that gestures, facial expressions, audible comments, or any other manifestations of approval or disapproval during the testimony of witnesses, or at any other time, are absolutely prohibited.
Don't laugh. There's a lawyer in jail for contempt in Texas right now, for making an obscene gesture in court to the other lawyer.

Only one attorney is allowed per witness. "Only one attorney for each party shall examine, or cross-examine, each witness. The attorney stating objections during direct examination shall be the attorney recognized for cross-examination." That won't affect Morrison & Foerster, but it surely will Boies Schiller. And the lawyers are expected to sit at the counsel table throughout each session and not leave the courtroom, absent an emergency.

If you attend the trial, be sure to march to this new drum's beat. Ach-tung.

Update: Here's how folks get drafted into the jury pool in Utah district courts, if you are interested. Here's a FAQ for them. And here are the federal rules, including how folks are selected to be jurors.

Update 2: Justice Sotomayor has granted Novell's request:

Feb 3 2010 - Application (09A647) to extend further the time from February 18, 2010 to March 4, 2010, submitted to Justice Sotomayor.

Feb 4 2010 - Application (09A647) granted by Justice Sotomayor extending the time to file until March 4, 2010.


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