At last! We can now read the entire voir dire in Apple v. Samsung, so everything that was asked and answered is now public. We have Days 1-3, with more to follow. So let's dig in.
That would be on Day 1 [PDF] some pretrial issues discussed, such as evidentiary issues like whether an email can be used and what the lawyers can and can't say or use as slides in their opening statements. They call such things demonstratives. Then voir dire begins on page 41, then the judge giving the jury the preliminary instructions. One of the first things she tells them is this:
And what we're doing this morning is a process of jury selection, which means that both sides are entitled to have a fair and impartial jury.
What that means is that whoever is selected as a juror would ultimately make decisions based solely on the evidence that's admitted during the trial and apply the law only as I instruct you. That is exactly what Samsung has raised as a problem, in that one juror introduced "evidence", his own views on how patent law works, which were incorrect and not part of what the judge's instructions were or related to evidence presented at trial.
On Day 2 [PDF], we have the plaintiff's opening statement. Note the famous "What's the point?" of having a trial question happens beginning on page 8.
Finally, on Day 3 [PDF], the plaintiff's opening statement continues, then the incident of a group visiting the courtroom is handled, on page 6, beginning on line 18, with the transcript erroneously, I believe, identifying the speaker as Michael Jacobs rather than the judge, the Hon. Lucy Koh. And then Apple begins to present its case, putting on the stand Phil Schiller, then Scott Forstall, and finally Justin Denison.
For Mr. Schiller, the lawyers were Harold J. McElhinny of Morrison & Foerster for Apple and William C. Price of Quinn Emanuel for Samsung. For Scott Forstall, it was Mr. McElhinny for Apple and Kevin P.B. Johnson of Quinn Emanuel for Samsung. For Denison, it was William F. Lee of Wilmer Hale for Apple, and John B. Quinn of Quinn Emanuel for Samsung.
Jump To Comments
I note from the voir dire that the judge also offered the prospective jurors a bit more privacy if they wanted it in answering personal questions. And she tells them that the process is intended to bring out any strong likes or dislikes:
Also, this jury selection process is intended to bring out any strong feelings that you may have, any strong likes or dislikes that may affect your ability to be fair to both sides. Five people raised their hands. The eventual foreman, however, Mr. Hogan, did not. That's another issue Samsung has raised, that this juror hid both his strong positive views of patents and his negative views of Samsung, due to an earlier litigation between him and Seagate. Apple has mocked that concern, in that it happened some time back, but you'll notice in the questions by the judge that things that might seem minor are asked. For example, the pool of prospective jurors is asked if they had read about the case. One says he read the Steve Jobs biography. He is asked if it caused him to have strong feelings, and he says that the book didn't alter any feelings he already had. Later the judge asks if anyone has already formed an opinion on who should win the case, and this juror raises his hand. So he and a couple of other hand raisers, including a Mr. Tripiano, are taken into the jury room for a more private chats, and this man lays it out quite cleanly:
And during this process, no one is here to judge anyone as a person. In fact, if you're candid about your strong likes and dislikes, you're actually doing what we're asking you to do and we thank you for your frankness and that is just a way that we can just ensure that both sides get a fair and impartial jury.
Okay. So with that, let me ask, based
on -- now you know who the parties are in the case and what types of claims have been brought.
Based on that, does -- would you raise your hand if you have such strong feelings about this case, the parties, what the charges and the claims are that you could not be fair and impartial. Would you raise up your juror numbers?
PROSPECTIVE JUROR: There are several, several reasons, but directly relating to what I read this morning that has to do with this, to me this seems like something that was hashed out years ago when Apple sued Microsoft for basically the same reason, which was -- Did this man nail it or what? Of course, he was excused. Mr. DePriest, it turns out, worked for one of the parties, and he was honest enough to say he wanted his employer to win. So he is excused too.
THE COURT: oOh, hang on a second.
PROSPECTIVE JUROR: Which was that Apple had a very nice operating system that was very popular.
Microsoft, through their windows product, pretty much replicated it, but had some slightly different features.
And so we went through this whole thing back then, and obviously Microsoft prevailed in that situation.
So, you know, in my mind this is -- this is practically the exact same thing, but now we're just dealing with slightly different technology, which was the tablets and the smartphones.
THE COURT: Okay. Let me interrupt you just a second. I'm sorry to do this. But -- so you cannot be fair to both sides in this case?
PROSPECTIVE JUROR: I think we've done this already.
THE COURT: i need a yes or no answer to my question.
PROSPECTIVE JUROR: No.
THE COURT: You cannot. Any objection to excusing Mr. Tripiano for cause?
Mr. Lee: No objection.
THE COURT: All right.
Mr. Price: Your Honor, my only reason to
not object at this point is I think there might be a misunderstanding for -- as to what this case is about. I'm not sure the press was accurate.
So I'm wondering if Mr. Tripiano was given, like, a general description as to, as to, for example, the fact that the operating systems aren't involved here, whether or not that affects whether or not he thinks he might be able to judge this case independently.
THE COURT: All right. Hearing that it doesn't involve operating systems --
PROSPECTIVE JUROR: Right. And I really don't know, when you get down to the weeds of this, as to what the actual technology is that we're talking about.
But it is similar -- in my mind, from what I read this morning, it is similar to what Apple and Microsoft went through years ago because you're talking about, according to the article, how the apps are aligned on the screen, the corners of how the screen looks.
There is supposedly a smoking gun, which is an e-mail that a Samsung employee, or
consultant, wrote internally that said, "Boy, we need to make this look a little bit differently. It looks too much like the Apple product."
In my mind, that doesn't hold any water. There is companies that --
THE COURT: Mr. Tripiano, I'm sorry, let me interrupt you one more time. Would you be able to keep an open mind in this case?
PROSPECTIVE JUROR: Here's the other aspect of this. This is the third kind of legal proceedings that I've gone through. One was a, a trial. The other one was an arbitration.
THE COURT: Were you a party in those
PROSPECTIVE JUROR: I was a party in one, I was a juror in the other.
THE COURT: Okay.
PROSPECTIVE JUROR: And the one where I
was a juror, I really didn't feel like justice got done.
I mean, between the twisting and the convoluted logic that we got from the attorneys and then the instructions, it was like our hands were tied.
and so you said several times that, you know, based on what we heard and based on your instructions, what you're telling me is I can't -- I can't use my --
THE COURT: You can't substitute your own views of what the law should be.
PROSPECTIVE JUROR: Not views of the law.
THE COURT: Okay.
PROSPECTIVE JUROR: But just my own sense
of right and wrong, my own sense of justice. You know, it's all -- it seems, in this setting, it seems to get all twisted up.
The judge also asks the larger pool this:
Now, many of you may have your own views about what our laws should be, but I just need to ask you one more time whether you would accept the instructions on the law that I give you and not insert and substitute your own personal views of what the laws should be. Whether you disagree or disagree with what I tell you the law is, will you accept it? If you cannot do that, will you please raise your hand? Okay. No hands were raised. Then she asks if the recent economic downturn affected anyone, and the eventual jury foreman says this:
PROSPECTIVE JUROR: When the economy -- excuse me -- went south, I was trying to establish a start-up and it went belly up and, in the course of events, I diminished all savings that I had and subsequently, through foreclosure, lost my house.
Which house would this one be? The one where he got the loan from Seagate dismissed in bankruptcy so he could keep the house? If so, how likely is it that he didn't recall that litigation?
THE COURT: I'm sorry to hear that.
PROSPECTIVE JUROR: So that was a negative impact.
But in terms of anything else, I feel totally impartial to the proceedings.
THE COURT: Okay. Would you -- you've seen the number of days that this trial would require; correct?
PROSPECTIVE JUROR: Yes.
THE COURT: Would it be a hardship for you to serve this many days?
PROSPECTIVE JUROR: No, not at this time.
THE COURT: Okay. All right. and nothing about your experience -- I'm very sorry to hear about it -- that would make you feel resentful to one of these parties here today?
PROSPECTIVE JUROR: Of course not.
THE COURT: Okay. Thank you.
The questions about any earlier participation in litigation begins on page 148. I see nothing at all that would lead any prospective juror to believe that they only had to reveal litigation that occured in the previous ten years, as the eventual jury foreman later claimed to the media (“Had I been asked an open-ended question with no time constraint, of course I would’ve disclosed that,” Hogan said, referring to the bankruptcy and related litigation.). The question was clearly whether they had *ever* been involved. On page 155, another prospective juror, in answer to the same question, mentioned litigation that happened in 1986. And yet when the jury foreman-to-be answered, he told of other cases he was involved in, but he stayed silent about Seagate, which happened later than 1986, as it is listed
in his December 1993 bankruptcy filing [PDF]. Anyone believe that he really thought, then, that he didn't have to reveal any litigation earlier than a decade?
Let the record show that no hands were raised.
Update: Look at this, will you? It's the cherry on top. The judge, beginning on page 193, is following up with another prospective juror about earlier experience on juries, when she remembers she has something to ask Mr. Hogan:
PROSPECTIVE JUROR: Yes.
As you can see, the story about thinking he only had to tell her about a ten year period falls off the cliff right here, in that she specifically and pointedly asked him to tell her more about a jury experience he had *two decades* ago. Then, on page 201, the judge asks another prospective juror details about a jury experience that happened *30* years ago. These were all opportunities for Mr. Hogan to raise his hand, or his voice, and say, "You know when you asked if we had ever been involved in litigation...?"
THE COURT: And were they state court or
federal court, if you remember?
PROSPECTIVE JUROR: I don't know.
THE COURT: That's fine. How long ago were these?
PROSPECTIVE JUROR: Oh, jeez. Probably 20-some years ago.
THE COURT: 20-some odd years ago. Okay.
And you understand that the standard in a criminal case is beyond a reasonable doubt, which is higher than the standards that would apply in this case?
PROSPECTIVE JUROR: Yes.
THE COURT: All right. I forgot to ask Mr. Hogan, the three civil lawsuits for which you were a juror, do you remember what the causes of action were?
PROSPECTIVE JUROR: One of them was an accident that occurred that was back in 1973 and we, the jury, did not rule in favor of the defendant in that case.
THE COURT: Oh. And I'm not asking anyone to reveal the verdict. I just want to know whether you reached a verdict.
Personal injury, car accident?
PROSPECTIVE JUROR: All three we reached a verdict. That one was personal injury.
THE COURT: Okay.
PROSPECTIVE JUROR: The next one was spousal abuse, but not criminal, so it was done in superior court.
THE COURT: Okay.
PROSPECTIVE JUROR: The other one was a little bit older and right now I can't remember the details. I remember we reached a verdict.
THE COURT: Do you remember roughly, what was the one two decades ago?
PROSPECTIVE JUROR: Well, one was in '73; one was in the mid '80s, '87, I think it was; and the other one that was more recent was 1990.
THE COURT: So you're due for another one.
PROSPECTIVE JUROR: Yeah.
THE COURT: Okay. All right. Okay.
I rest my case.
And look at this detail, from page 264, as the judge is giving the jury instructions:
The fact that the PTO grants a patent does not necessarily mean that any invention claimed in the patent, in fact, deserves the protect of a patent. For example, the PTO may not have had available to it all the information that will be presented to you. Yet in a later media event at Gizmodo where anyone could ask him questions, Hogan was asked a question about whether he had considered if the patents should have issues, which he answered by contradicting the above instructions:
Did you have the opportunity to ask "Is this something that should be patentable?" during the trial? Samsung said he was "deliberately dishonest". I have a relative by marriage who lies so constantly, seemingly without effort or deep thought, that I wonder if she is in touch with reality sometimes. She seems to just say whatever enters her head. You know what I mean?
Velvin Hogan: @Demon-Xanth
No, however it was not the function of this jury to ask that. We were bound to use the law as it is today. The patents were issued the judge instructed us not to second guess the current patent system.