Home / Robert Farley / “You mean this morning, or generally?”

“You mean this morning, or generally?”


When judges stop being polite and start getting real:

Judge Lucy Koh couldn’t take it anymore after seeing a 75-page rebuttal witness list from Apple in court Thursday, saying that Apple lawyer Bill Lee must be “smoking crack” to offer such a lengthy list for the what remains of the 25 hours each side has to make their case to the court.

As CNET reported, Koh’s outburst ran as follows: “I mean, come on. Seventy-five pages! Seventy-five pages! You want me to do an order on 75 pages, (and) unless you’re smoking crack, you know these witnesses aren’t going to be called when you have less than four hours.”

In response, Lee said he was not, in fact, smoking crack.

Via Lawspider.

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  • DrDick

    We need more judges like this. This kind of thing is actually fairly standard procedure for large corporations in litigation.

  • Bill Murray

    does smoking crack still remain a relevant bon mot for the 21st Century? What about huffing or meth or bath salts?

    • Federal judges, even the good ones, aren’t exactly known for being hip to the lingo. It is nice that software patents are finally getting absurd enough to attract judicial ire and mainstream press attention, though.

    • UserGoogol

      Well the word “crack” has certain advantages, I suppose. Not only is crack cocaine a hard drug of comparatively low “class status,” but also the word itself is well suited to such phrasing, since being cracked implies damage to begin with, and it has a nice crackly onomotopeia to it. And since crack is pretty much the standard term for that variety of narcotic, you don’t have to worry about using a slang term that makes you sound silly.

  • Anderson

    The bad old judge Harold Cox in MS liked to berate lawyers: “You think I’m so stupid as to need that many witnesses to understand this case? Pick four.”

  • Jamie

    The unfortunate aspect is that Koh acted human when she would be required to do something insane. Judges don’t seem to care so much when the burden is on someone else. (I’m not criticizing Koh here; general observation.)

  • Sherm

    What’s “real” about limiting a litigant to 25 hours to prosecute and/or defend a claim simply because the judge believes that her time is more important than a litigant’s right to their day in court?

    • ODB

      You realize that each judge has hundreds of other cases on her docket at one time, right? Why are Apple/Samsung’s rights so much more important than all those other parties?

      • Sherm

        Yes. And you realize that very few cases actually go to trial and that the federal district judges have several laws clerks and magistrate judges assisting them with their “busy” caseloads? It’s not about Samsung and apple having more rights than other litigants, it’s about all litigants having the right to present or defend their cases as they see fit without be limiting in their proof by a judge who simply doesn’t want to take the time to allow them to do so. I’ve dealt with this personally, and it’s fucking bullshit being rushing through a case simply to appease a judge too lazy to allow the lawyers to do their jobs.

        • ODB

          Work expands to fill the time allotted, especially if you have two parties with essentially unlimited resources to hire lawyers. 25 hours of testimony (not total time) should be more than enough to present the rectangle with rounded corners and other assorted idiotic patents in this case.

          Also, did you know that judges have other responsibilities that take a lot of time that are not trials?

          • Sherm

            It is 25 hours of total time, excluding opening and closing statements. You are charged while cross-examining the other side’s witnesses as well. And federal judges will routinely charge you for other time as punishment if they disagree with your legal arguments. Seriously, you are arguing that arbitrary time restraints on litigants are a good thing?

            • Marek

              Time limits are a good thing, yes. “Arbitrary” is argumentative, or an issue for appeal. Put on your case and be done with it.

            • Cody

              I’m having trouble seeing an alternative. You would prefer that there is no time limit? In this case, when Apple realizes their injunction is going to be lifted allowing their competitor to sell product again they are going to simply pay their lawyers to present their case for another 5-6-infinite number of years until the judge dies of old age and maybe they get a new one.

              Without time limits, how would you ever close a trial?

              • Sherm

                Yes. I would prefer no time limits over a system where relevant witnesses are not called and attorneys skip on cross-examining witnesses because they want to make sure that they will have time to call their own witnesses later. Twenty-five hours for a case of this magnitude is absurd. And she didn’t even let Samsung’s attorney create a proper record of their objections for appeal. Samsung was left with eleven hours to present their defense and to to prosecute their counterclaims. Litigants should not have to worry about a shot clock while presenting evidence.

                • LawSpider

                  For almost a decade I practiced in this field of law: patent litigation, primarily for large companies. That was after interning for a federal judge in law school.

                  Judge Koh was being completely reasonable. Things that laypeople may not fully appreciate are:
                  (1) Few issues are in legal dispute by the time of trial. The true factual disputes are at a minimum as well. The parties are not proving, or even explaining, their entire legal case to the jury. The judge has likely ruled on over 50% as “issues of law.”
                  (2) Patent litigants always, always claim to need more time than they are given. It is precisely because of the levels of complexity in these cases that the juries can become completely overwhelmed with too much information. For every party legitimately complaining about “shot clock” running out before key relevant evidence can be presented (for the record: 1% of the time, at most), there are plenty of situations in which parties with the weaker arguments are happy to overwhelm the jury in the hopes that confusion will work to their advantage.
                  (3) Judge Koh knows the issues still in dispute and the truly relevant witnesses. How? Civil parties are required to submit a pretrial order setting out 98% of that information. Moreover, I guarantee — on my first-born child — there were numerous motions filed in this cases (including key summary judgment motions) that further emphasized the key witnesses. Civil trials are the opposite of trial-by-ambush.
                  (4) It is easy to create a record for appeal in a civil case. The requests to present have already been submitted to the court; the Samsung attorney states an objection to the ruling — the appeal has been preserved in the record.
                  (5) As mentioned before, in light of the vacancy rate, federal judges are totally overwhelmed by their dockets. Yet mostly they truly do their best, giving 110% (working private practice hours for government pay). Zero-sum game: If Samsung gets even more time, Joe the Employee terminated for racial reasons gets less time to argue his case.

                • Sherm

                  LawSpider — “If Samsung gets even more time, Joe the Employee terminated for racial reasons gets less time to argue his case.”

                  I am painfully well aware of this fact. I represent the little guys of the world, and not the Apples and the Samsungs. And the federal judges give us even less time, and it really sucks. I’m not shedding any tears for Apple and Samsung. But having dealt with the time limitations imposed by federal judges, I am opposed to them in general. My partner and I were given 16 hours a couple of years ago as a counterclaiming defendant in a complex contract/ucc case involving multiple claims and millions of dollars. The big corporation plaintiff was given 18 btw. A lot of fun worrying that you will not have time for your case in chief while cross-examining the plaintiff’s witnesses, which is pretty much what happened to Samsung in this case.

                  And why do lawyers have to bill tons of hours on those damn pre-trial orders? To make the Judges’ jobs easier.

                  As for the appellate record, I read that she refused to permit Samsung to identify on the record the witnesses they were unable to call due to the time limitations. Yes, the objection is on the record, but the proof which they were unable to submit is not included in the record. Seeing how the appellate courts rarely interfere with the lower courts’ efforts at calendar control, this seemed rather unfair because it effectively eliminated any chance for a successful appeal on this issue.

  • Bloix

    Koh sits in the Northern District of California, a court with over twenty percent (3 of 14) of its judgeships vacant due to the unwillingness of Congress to confirm nominated judges. That court gets over 600 filings per year per judge.

    This trial began on July 30, which means it’s been in trial for three full weeks, and closing arguments and jury instructions are yet to come. In the end, it will be almost a one-month trial – that is, this judge is devoting more than 1/12 of her annual bench time to this one case. And that’s not counting the many hours in chambers given by her and her clerks to reviewing and ruling on the countless legal and case management issues in the run-up to trial.

    Every lawyer thinks that his case needs more time than the judge is willing to devote to it. But the provision of resources to dispute resolution is a social decision, and our society has decided to skimp on it. That’s not the judge’s fault. She has to manage her docket, and in doing so she’s been very generous to these litigants.

    • Sherm

      Yes, a three week trial, but she only conducts trials three days per week. Hardly a grueling schedule. Jury instructions will take no more than 60-90 minutes, and I doubt she’s giving the lawyers more than an hour or two each for closing statements. When cases go to trial, the parties should be permitted to introduce all relevant and admissible evidence they want to without being limited by arbitrary time limitations.

      As for docket concerns, legalize all drugs and get rid of the antiquated diversity jurisdiction, and there will be no such problems any more.

      • Forgive my ignorance–what is the diversity jurisdiction?

        • Sherm

          When one side is not from the state where the suit is filed and damages are in excess of 75k, the case can be brought in (or removed to) federal court rather than state court, although no federal question of law is involved.

      • elm

        I don’t know enough to know weigh in authoritatively on this subject, but your argument seems to be that because there are more effective measures of docket control that are completely outside of the judge’s control, one of which shows no sign of occurring any time soon, judges should not be permitted to use those tools available to them.

        What should the judge do to manage her docket given the system we actually have in place? I’m open to the idea that time limits are a bad way of doing it (as I said, I honestly don’t know), but then what’s the alternative? If your answer is nothing, then you’re back to OBD’s point. If one party to one lawsuit (or both parties) can go on at length, that will push back other people’s trials which will infringe on their rights to a speedy trial. How do you resolve who’s rights are more important in that case?

        • Sherm

          I’m not sure that it’s necessary in the first place. State court judges handle their dockets without limiting litigant’s rights with arbitrary time deadlines. I suspect that federal judges do this crap simply because they can and not because they need to.

          • bloix

            I don’t know what state courts you practice in, but state court judges where I have tried cases (Maryland and Delaware) put strict time constraints on the parties.

        • Sherm

          Elm, one last thing. If a lawyer wastes trial time calling unnecessary witnesses and conducting long direct and cross examinations of witnesses, he does so at his own peril. The jury will ultimately punish him. Let that system work.

          • So the solution for a lawyer wasting time is to let the jury punish that lawyer’s client? I don’t think that’s how the system is supposed to work.

            • Sherm

              No. The point is that a lawyer won’t deliberately waste time.

              • Dave

                Right, like how nobody ever commits a foul in professional sports, because their team will get penalized?

                • Sherm

                  You bore a jury to death with unnecessary testimony, you lose the case. Its very simple. Most trial lawyers are minimalists when push comes to shove.

              • LawSpider

                No, this is simply not true in patent litigation. I know this from personal experience.

                “You bore a jury to death with unnecessary testimony, you lose the case.”
                Please see my response, in particular #2 above. Every portion of patent litigation is inherently boring, except to the litigants (and occasionally even to them). Moreover, research talking to patent juries (done by the American of Intellectual Property Law Association, if I recall the video correctly — it’s been 13 years) shows that the inherent boredom and confusion often just evens the playing field.

                • LawSpider

                  (Ignore the stray “of”. LGM, editing, please!)

                • Sherm

                  I’m willing to accept the premise that patent law might be different in that it is inherently boring (I have no experience in patent law), but this sounds like a pretty interesting case, and there so many issues. Just take a look at the proposed verdict sheet. The time limit seems outrageous in light of the number of issues involved.

              • David M. Nieporent

                I want to echo Sherm’s comments throughout this thread, and add this: federal judges (all judges) have the power to exclude testimony on the grounds that it is merely cumulative. (That is, if all you’re doing is calling six witnesses to testify to the same facts for the sake of bolstering your case, the judge may decide that the jury got the point after three witnesses.) To do that, the judge will require you to explain in advance what you expect to get out of a particular witness.

                But Koh isn’t ruling that the testimony of a specific witness is cumulative; she’s imposing a time limit ex ante, without regard for whether a particular witness’s testimony is important.

  • LawSpider

    (For some reason, LGM’s fine blogging service is preventing further replies to Sherm’s 3:56 post above.)

    Sherm: What I read is that Judge Koh simply refused to issue an order adding those witnesses to the witness list (or including all of them to a reply rebuttal list — it’s a bit unclear, and I don’t recall the ND Cal’s patent litigation procedures in that detail). But Samsung already submitted its 75-page requested list to the court — that’s what Judge Koh stared at in horror. Just like the client’s pretrial submission, or any proposed motion submitted to the court, the list is in the record. Surely Samsung could rely on that on appeal.

    You make an excellent point that there is a .01% possibility that the Federal Circuit will overturn any verdict based on her decision. (Frankly, if any appellate court would, I’d bet on the Fed’l Cir.) But the overwhelming discretion given to district court judges is primarily a separate issue to whether this use of it is inappropriate.

    • Sherm

      The 75-page submission was from Apple, and it prompted the crack smoking comment.

      She refused to permit Samsung to make a formal application for more time wherein Samsung would have identified the witnesses and evidence they were unable to submit due to time limitations. Samsung was actually unable to cross-examine some of Apple’s rebuttal witnesses because they were out of time.

      We are going to have to agree to disagree as I don’t believe that this is a how a judicial system should operate. Cases should be decided on the evidence. Not on the evidence which the lawyers could get in before the shot clock expired.

      • We are going to have to agree to disagree as I don’t believe that this is a how a judicial system should operate.

        Patent law case. It’s hard to imagine that two wildly profitable companies should be allowed to take up all the court’s time when there are other things to do. C|Net has some interesting draft forms for the jury to go through.

        • Sherm

          Your link is to the verdict sheet I referenced above. A lot of issues presented there, yet Samsung only had 11 hours to present its defense and its counterclaims. Sorry. But even profitable companies and rich assholes are entitled to their fair day in Court.

          And if this Judge is screwing over the Apples and the Samsungs of the world, I assure you that she’s screwing over the little guys even more.

          • But even profitable companies and rich assholes are entitled to their fair day in Court.

            How many days in court exactly?

            • Sherm

              This trial has taken up three days of court time a week and it started this month.

                • Sherm

                  Just jury charges and summations remain. Jury charges won’t take more than an hour or so. I imagine the lawyers are under strict time limitations on their summations as well.

                  I’m baffled by the support here for a judge who is limiting access to the court system. Like I said before, if she is doing this to two large corporations under the magnifying glass of the media, I shudder at the thought of what she is doing to the regular, everyday people who are trying to have their day in Court.

                • Keep track of her and report back!

      • LawSpider

        Yes, I stand corrected — it is Apple who asserted that it had more witnesses that it needed to call. Samsung complained that it needed more time, because Samsung has already spent 14 of its allotted 25 hours cross-examining Apple’s witnesses, which left Samsung less time to present their own case. It’s highly possible that the judge underestimated the time needed on this trial. But I can’t begin to tell you how unsurprised I am. Ask any experienced patent litigator, and he or she will tell you that newer judges almost ALWAYS underestimate the complexity of patent litigation (and also that most judges hate patent litigation with a poorly hidden passion). But good patent litigators plan accordingly; counting on the judge’s assent to last-minute extensions of the trial is simply a mistake.

        On a policy note — before this gets any more bogged-down — I’ll note that it is precisely because of district court judges’ notorious inability to handle patent cases and their dislike of these cases that there has been repeated talk of a patent trial court with specialized judges. However, that talk has gone nowhere fast, for a variety of reasons.

        But most puzzling is your assertion that if Judge Koh is making litigation problematic for the big companies, then she is undoubtedly treating the smaller parties just as bad or worse. This could be the case, but in the zero-sum-game of court time it is hardly the only natural conclusion.

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