33 questions @ $31.8 million—That’s a lot of apples

By now everyone has heard that Apple took a $1.05 billion bite out of Samsung Friday.  The jury did not just say, we find for Apple for $1.05, but it did not tell us which facts it found or how these facts fit under the law. It filled out a 33 question twenty page form. It answered probing questions such as

7. For each of the following products, has Apple proven by a preponderance of the evidence that Samsung Electronics Co. (SEC) and/or Samsung Telecommunications America (STA) has infringed the D’305 Patent?

(Please answer in each cell with a “Y” for “yes” (for Apple), or with an “N” for “no” (for Samsung). Do not provide an answer for any cell that is blacked out.)

10. If you answered “Yes” to any of Questions 1 through 9, and thus found that any Samsung entity has infringed any Apple patent(s), has Apple proven by clear and convincing evidence that the Samsung entity’s infringement was willful?

(Please answer in each cell with a “Y” for “yes” (for Apple), or with an “N” for “no” (for Samsung).)

11. Has Samsung proven by clear and convincing evidence that Apple’s asserted utility and/or design patent claims are invalid?

You can find the jury form used at http://ia600609.us.archive.org/14/items/gov.uscourts.cand.239768/gov.uscourts.cand.239768.1890.0.pdf .

For $31.8 million per question, you might think that Samsung is entitled to more than a simple yes/no. If the judge triples the verdict because the infringement was willful (question 10), its $95.4 million per question. And just how will the Court of Appeals review this verdict?

Foreign Clients Want U.S. Court Reform

Hi. I’m James Maxeiner. Along with Gerald Russello, I’m guest blogging this week. Although I teach law now, formerly I was a litigation lawyer and in house counsel, so I look at things from a practical perspective. Thanks to additional foreign education and international practice, I look abroad for ideas that might help our system work better.  You can find out more about me at http://law.ubalt.edu/faculty/profiles/maxeiner.cfm

My litigation practice background—which was mostly for foreign clients—is the theme of my first post.

What’s the difference between a domestic and a foreign client? When you touch on a hot button issue, e.g., crazy lawsuits, discovery, unjustifiable and unreviewable jury verdicts, or incredible costs, the American client will squawk, but will accept the U.S. lawyer’s consolation that, “sometimes it’s crazy, but that’s the price we pay for our legal system.” The foreign client—at least one from a well-functioning system—will not.

The foreign client will tell the U.S. lawyer, what do you mean? Your system is primitive and unjust. It’s crazy that someone can bring a lawsuit with no plausible legal ground. The foreign client will say, its expensive and idiotic that the adversary’s lawyer can make me produce thousands of documents with no apparent connection to the lawsuit. It’s unjust that the jury gives a verdict that makes no sense and no court can review the “facts” the jury found and its application of law. The foreign client will scream to high heaven when he or she wins: “what do you mean I won? After paying you, court costs and experts’ fees, I have only $30,000 of the $100,000 the defendant owes me. That’s not justice!

There’s another difference: the sophisticated foreign client will not only give the U.S. lawyer a piece of his or her mind, he or she will tell the lawyer how things can be done better. He or she will say, we don’t have many frivolous lawsuits, because the loser pay rules discourages most of them and active judges weed out the remaining ones. He or she will say, we don’t let parties demand any materials they like: judges have to approve materiality of evidence taken. We won’t let irrational decisions stand: decision-makers in first instance have to explain their decisions and those decisions are fully reviewable on appeal. In our system, a win is a win: losers pay the cost of winners. My right is to one hundred cents on the Euro and not discounted to third.

Practice for foreign clients challenges us to reform our courts, not with small steps to deal with the extreme, but with fundamental changes for the everyday. As Philip K. Howard’s Common Good organization argues, America is fixable, but it needs to Start Over. Foreign clients force American lawyers to reconsider what they are doing.

Read more: James R. Maxeiner, Failures of American Civil Justice in International Perspective (Cambridge University Press, 2011) http://www.amazon.com/Failures-American-International-Perspective-ebook/dp/B005IVX1I4http://www.theatlantic.com/special-report/america-fixable; http://www.commongood.org/

 

 

Goodbye to metal bats?

The family of a New Jersey boy severely injured by a line drive has reached a $14.5 million settlement with the maker of the metal baseball bat and other defendants that include Little League and a sporting goods retailer. Plaintiff’s lawyers have argued that metal bats raise the risk of injury on the diamond by imparting too much force to the ball. [New York Post, Point of Law (CPSC failed to find metal bats any riskier than wood), earlier here, etc.]

Long-necked beer bottle maker not liable for barroom assault

A Texas appeals court has affirmed the dismissal of a lawsuit seeking to hold Anheuser-Busch liable for an assault suffered by a bar patron. The suit alleged that the long-neck design of the bottle made it too attractive for assailants seeking a weapon; the court agreed with the brewer that the plaintiff had failed to make out a sufficient case to avoid summary judgment. [Wajert, Mass Tort Defense]

International law roundup

Splashback: NYC beverage firms defend themselves against Bloomberg

For now, at least [Ira Stoll, earlier].

Related: “Soda Noir,” Owen Smith’s funny cover illustration for the June 18 New Yorker. And George Will reveals in his column that as part of its stimulus program the federal government spent millions of dollars on campaigns at the local and state level to crack down on sweetened drinks, a policy of dubious legality given that existing law “prohibits the use of federal funds ‘to influence in any manner … an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation.'” [earlier here, here]

August 23 roundup

  • Cross-examination could be awkward: “Top Nevada Court Says Attorney Son Can Represent Dad in Divorce From Mom” [ABA Journal]
  • “Phoenix Woman Ordered to Not Give Out Water in 112 Degree Heat Because She Lacked a Permit” [Doherty, Reason]
  • Admitting no guilt, Yale capitulates to feds’ Title IX probe, promises crackdown on sexual “climate” [YAM, earlier here, here, etc.]
  • Citing “egregious” ethics lapse, judge denies McGuireWoods fees in BarBri antitrust case [NLJ]
  • Foreign Corrupt Practices Act probe of retailers? [Reuters, FCPA Professor] FCPA piggyback shareholder suits falter [D&O Diary]
  • Obama has postponed a slew of new regulations until after November, and they’re a costly lot [Rob Portman, WSJ]
  • Fifth Circuit rejects challenge to sentencing in Paul Minor case [YallPolitics, background]

Blistering black marble bench leads to suit against Dallas Cowboys

A Texas woman “is suing the Cowboys and team owner Jerry Jones for the third-degree burns she suffered on her buttocks after sitting on a black, marble bench at the Dallas Cowboys Stadium two years ago while waiting for the debut Blue & Silver scrimmage.” Her lawyer says she was burned through her clothing and required skin grafts: “I’m surprised there aren’t more reports of burn injuries from sitting on those dark, black benches.” [Fort Worth Star-Telegram, CBS D-FW]