by Pat McKee
Cabrini used the opportunity to take a cheap shot. “Your Honor, I am happy for Mr. McDaniel to take all the time he needs to assimilate this ruinous precedent.” But if there was anyone in the room who could be more condescending than Cabrini, it was the judge—who acted as though Cabrini had not even spoken.
“Gentlemen, our next available trial date is one month from Monday. I am continuing this case until then. I suggest you use this time to settle. If you don’t, and we go to trial, I will be inclined to let the matter go to the jury on SyCorAx’s claim for punitive damages.” The judge’s threat was the procedural equivalent of handcuffing me while Cabrini raided my client’s treasury.
Most trial lawyers have had a ride on this train, railroaded by a judge, who had already made up his mind which side was going to win, and who wanted the case to go away without more work on his behalf. The only thing to do is to jump off before the engine leaves the station.
“Your Honor, Milano Corporation is not inclined to settle and does not wish to postpone the trial in this case.” These were the first words I had spoken to the judge since we exchanged pleasantries upon meeting. Judge Richards yanked off his glasses, leaned across the desk, and shook his head with the same decisive exaggeration as if I had proposed an illicit liaison with his wife. Before he got another word out I pressed my point.
“All I ask is that you let me brief the issue before you decide. No one has had the opportunity to digest the ruling fully. I’ll have a memorandum of law on your desk Monday morning.”
“If you expect to try this case in two weeks, I’ll need your Pretrial Briefs by next Friday.” Judge Richards rose and tossed his glasses on his desk, signaling the meeting was over. He could still make it to Wolf Creek with plenty of daylight left. “And it’s going to take a hell of a lot to change my mind.” The judge disappeared into his private office.
Cabrini was out the door and heading to the elevators before I collected my briefcase, no doubt hurrying to tell his client of their extraordinary good fortune and my inexplicable stupidity. I was seen out by an intern, the lowest caste in the chamber’s order.
I called Placido as soon as I got back to Strange & Fowler. From my glass-walled corner office the Federal Courthouse appeared short, squat, and insignificant in the distance forty-stories below.
When I told Placido what the judge said, he went off.
“Figlo di puttana! The only courts in the world worse than the Italians are the Americans. At least here you can buy a good result. I’ve been throwing money at this case for years! Why the hell am I still dealing with it?”
As soon as Fowler gave me a free hand, I developed my aggressive trial strategy based on the rock-solid precedent that the D.C. Circuit had relied on in Halo and sold Placido on it. But in an instant, the Supreme Court reversed the case, blew up my defense, and turned a winning strategy into an almost-sure loser. I had to explain to Placido how we got here—and more importantly, what I was going to do about it.
“Judge Richards called me and Cabrini to his chambers to discuss a Supreme Court decision that just came down this morning. It’s not good. The judge is putting a lot of pressure on us to settle. I—”
“Settle! I’ll never settle!”
“—I pushed back, and he is giving me this weekend to put together a brief to convince him that we still have a defense after the Halo decision.”
“What’s this Halo decision?”
“The Supreme Court made it far easier for a plaintiff in a patent case to get in front of a jury on punitive damages. They just need to convince the judge that we knew of the patents and intentionally used them. Cabrini has argued all along that Milano purposely pirated SyCorAx’s patents, and we have been equally insistent that the patents are ours, and we can use them—”
“Of course we can, they’re ours, we—”
“You need to understand, that position now plays right into their hands, or at least that’s the way Judge Richards sees it. Now our exposure is through the roof—triple what it was before this decision came out. And the way Atlanta juries have been giving away other people’s money, going forward with the trial is a billion-dollar roll of the dice.”
“How can this be happening . . . don’t they have to prove the patents belong to them?”
“Sure, but the judge is very close to ruling that the documents they’ve come up with are evidence of their ownership. I have no idea where they got them, but it’s been enough to keep Judge Richards from throwing the case out. After Halo he’s all but ready to rule for SyCorAx.”
“Well, I’ll discuss this with Anthony. And you . . .”
“I’ve got a brief to write, and I need to get ready for trial. And I don’t have much time to do it.”
“Ariel will give you all the help you need.”
The principals’ elusiveness would have made handling the litigation impossible were it not for Ariel, Placido’s assistant, who had anticipated my needs for any arcane patent information supportive of the case and would provide it as soon as I requested it. I was convinced she could read my mind.
While I was concerned about the effect that a crushing loss in the Milano case would have on my client, my firm, and my career, it was my family—or what was left of it—that I was most worried about. My father was already gone, and the world had not been kind to my mother.
When I got out of law school, we both landed at the threshold of Strange & Fowler. I walked through the front door as one of its bright new stars, while building security found Mom half-conscious at the loading dock, clutching an empty bottle of Old Crow, demanding to see her rich son. As soon as I was drawing a paycheck, she began stays in a continuous stream of rehabilitation facilities—each of which she checked herself out of as soon as she sobered up, immediately to start drinking again. Without my support Mom had nowhere to go.
Now the aggressive trial strategy that I had urged Placido and Anthony to endorse appeared reckless in the extreme. It was my plan at trial to dare the SyCorAx lawyers to explain how the corporation came into possession of Milano’s secrets. Without producing someone who had worked in SyCorAx’s laboratory on the patents—I would argue—details about them must have been stolen from Milano.
The risk of this strategy was that all SyCorAx’s lawyers had to do was to come up with a little old man from a dark lab who could claim with any credibility that he was the source, and the case would have been over. But I knew they couldn’t produce that witness. At least they hadn’t been able to do so throughout the years of discovery that I had used to turn over every corporate rock and shine a light under it. Until now the thing that kept me up at night was the fear that SyCorAx’s lawyers had sandbagged me, knowing that my strategy was the only way for me to win and determining that at some critical point in the trial they would spirit a witness to the stand who would pull Milano’s secrets right out of his hat.
That was a risk I was willing to take. What I had not anticipated was a Supreme Court decision that reversed years of established precedent, or a trial judge who felt my client’s defense imposed too great a burden on his time at the skeet range. Now my strategy looked a lot like a direct track to the bankruptcy of Milano, an ignominious end to my short career, and my mother winding up on the streets again.
I contacted Ariel as soon as I finished with Placido. We never spoke on the phone and only communicated by email, but she was no more than moments away from a response to anything I needed. She assured me that she was available to edit the brief over the weekend.
After all night assimilating Halo, I had a first draft to her by noon on Saturday. I knew this was 8:00 in the evening Milan time and didn’t expect a response for several hours, so I walked to my condo two blocks from the office to grab a snack and take a nap, planning to return in the late afternoon. That would give me enough time to get one more draft together and a chance for Ariel to look at it before emailing it to the judge Monday morning.
My phone pinged. I had just crashed on my sofa. It was 2:00 Saturday afternoon, and Ariel had revised the entire brief. I couldn’t sleep now, turned on the coffee pot, and jumped on my laptop. Ariel and I went back and forth with drafts; she turned around her edits almost as soon as I could get out new drafts. At one point, when it was 3:00 in the morning in Milan and Ariel had just turned around another edit, I couldn’t contain my curiosity. I was paid very well to do without sleep and turn in major briefs in a weekend, and I had no one at home to be responsible for other than myself. But this marathon writing session must have been a strain on Ariel.
“You don’t have to do this all night. I’m sure you have family who’re missing you.”
“Paul, you are so kind to be concerned. But you don’t need to be. I think you and I are a lot alike.” It was a cryptic response, enough to pique my interest, but not enough to encourage further inquiry. I left it alone.
Ariel and I put in over 40 hours on the brief from Friday afternoon to early Monday morning, and I had a polished final version on the judge’s desk before his coffee arrived. But even with our extraordinary efforts, I knew convincing the judge that Milano still had a defense was a longshot.
So I wasn’t prepared for the call from the judge’s chambers on Monday afternoon. It came from the same lowly intern who had led me out of the offices on Friday.
“The judge asked that I call you and Mr. Cabrini. He wants you to know that after reviewing Halo Electronics in the light of your brief he has decided to let the jury consider the issues raised by the defense. He also said we are going to honor the continuance of the trial for thirty days. Your amended proposed Pretrial Order is due in two weeks.”
I wasn’t going to question his radical change of heart. Somehow, I had persuaded the judge. Now all I had to do is persuade the jury, the lottery of human colloquia.
Three
“Oyez, Oyez, Oyez, the United States District Court for the Northern District of Georgia is now in session. The case of SyCorAx, Ltd., v. Milano Corporation, the Honorable Thomas Richards presiding. Be seated and come to order.” The bailiff gaveled the proceedings open in Courtroom 9E in the Atlanta Federal Courthouse. Judge Richards’ Courtroom was like all others in the building, designed for maximum discomfort—stark walls, no windows, wooden pews, searing artificial light, all arrayed before a judicial bench that towered over litigants like Oz over the Tin Man.
It was day twelve of a trial Judge Richards had scheduled for only one week. Anthony’s son, Enzo Milano, grandson and namesake of the company’s founder, groomed to take over the company, sat next to me at counsel table. Enzo was the face of the corporation, and this morning that face was ashen, lips dried and cracked, eyes shot, and hair disheveled. Depending on the outcome of today’s deliberations, he either would be leading Milano Corporation into the next century or presiding over its dissolution. Judge Richards wasted no time and pressed hard toward the finish.
“Good morning, ladies and gentlemen of the jury. We concluded yesterday with the closing argument of Mr. Cabrini on behalf of the Plaintiff, SyCorAx, Ltd. This morning you will hear from Mr. McDaniel on behalf of the Defendant, Milano Corporation. When Mr. McDaniel closes then Mr. Cabrini, representing the party with the burden of proof, will have one final opportunity to address you in rebuttal. After that I will give you the instructions on the law you shall apply in this case, and you will withdraw to begin your deliberations.” Judge Richards peered down at me from the bench and announced my turn to address the jury.
“Mr. McDaniel, you may proceed.”
Television and movies make it appear that lawyers’ closing arguments are masterpieces of extemporaneous eloquence and logic, a combination of college debate and Shakespearean soliloquy. And some lawyers would like the world to think they are so brilliant that they can pull up all the facts of the case and arguments of the briefs off the tops of their heads. But the truth is, every word a lawyer says in front of a jury is considered, written, practiced, and mastered until a very-polished presentation sounds as though it just came to the lawyer’s mind at breakfast. I was no different. I had practiced my closing for months. And I was sticking with my aggressive strategy. Either I was going to win it all, or I would soon be testing the job market. I stood and faced the jury without a note in my hands.
“Ladies and gentlemen of the jury, Mr. Cabrini’s argument was about everything other than what is important in this case. SyCorAx’s lawyer focused solely on his contention that Milano infringed SyCorAx patent rights. That’s all he talked about. Why? That’s all he has.
“SyCorAx’s lawyer has missed the most critical step in his proof. His Honor will tell you at the conclusion of this case when he instructs you on the law that before SyCorAx can claim Milano infringed its patent rights, SyCorAx must establish it has the right to the patents in the first place. I contend that SyCorAx must show you how it developed these patents before it has any basis at all to claim Milano infringed its rights.
“So, let me bring you back to the heart of this case. You have heard days of testimony establishing that Placido Milano, the head of research for Milano Corporation, is directly responsible for developing three miraculous drugs that promise to end the scourge of HIV. These drugs are so innovative that the United States Patents and Trademark Office awarded Milano multiple patents. Though Milano invested tens of thousands of hours of its most-gifted scientists’ time and millions of dollars in research funds, it is Placido’s vision to make these drugs available free of charge to anyone who cannot afford them, much in the spirit of Jonas Salk who, generations before, made his vaccine available to all and saved millions from polio.
“Enter SyCorAx, more like the Martin Skink of this saga—the man whose company increased the cost of its life-giving drugs tenfold. It was only after Milano’s groundbreaking work that SyCorAx came out of nowhere with its team of lawyers. They claim SyCorAx, not Milano, is entitled to the patents on those drugs. You haven’t heard SyCorAx say they would provide these drugs free of charge to anyone. In fact, you have heard hours of testimony from SyCorAx’s accountants telling you how much profit they expect to make from the sale of these drugs and demanding Milano reimburse it for its loss by paying millions in damages. You can be sure if SyCorAx is successful in this case, hundreds of thousands of people will be denied access to these life-giving drugs, just so SyCorAx can fill its corporate coffers.”
It’s usually right about here, when I have given the other side my opening punch, that I look around to see if it has landed. Until now I had been staring each one of the jury members in the eye, going from one to the other, hoping to catch a sympathetic look, and a poised, stylish, lady on the top corner of the box was nodding approvingly, ever so slightly. The rest were either fighting sleep or had their arms crossed, staring at the ceiling.
Through our jury research we knew just about everything there was to know about each one of the jurors. Juror number three, the stylish lady, was a retired English professor, divorced, with two grown children. Her former husband came to the marriage with a son with whom she grew very close and who was for a time her step-son—and who died of AIDS. When Cabrini asked if any jurors have family members with HIV or AIDS, she truthfully answered “No,” otherwise he would never have left her on the jury. By reason of her education, interest, and personality, I was counting on juror number three to be a leader among the jurors—one who would lead them to a defense verdict. I was desperate for some positive energy from the jury, and I allowed myself to feel a spark of encouragement kindled by the attention juror number three was paying to my argument.
“But SyCorAx cannot prevail, not on the evidence before you. It has not brought forward any credible evidence that it developed these drugs. I challenge my opposing counsel, and I challenge you, ladies and gentlemen of the jury, where are the scientists and the lab technicians who supposedly did the research? Where are the accountants and auditors who attest to t
he millions of dollars spent on this research? You have not seen one scrap of evidence, not one bit of testimony to establish that SyCorAx actually did the work to develop these drugs.”
The SyCorAx CEO, who had been lounging back in his chair throughout the trial was now hunched forward, whispering in Cabrini’s ear, gesturing toward something written on a legal pad. Cabrini nodded, but without his characteristic bravado.
“I’ll tell you what you have seen, what the entire case of SyCorAx rests on. SyCorAx’s evidence consists of thousands of pages of computer code, reams of paper, hundreds of exhibits, detailing the complex chemical formulas of these drugs. This evidence is troubling indeed. No doubt it took an army of lawyers toiling day and night for months to generate this mountain of obfuscation. And I willingly admit to you that this evidence must have come from someone who had direct knowledge of those patents.
“When you consider this evidence, I ask you to remember what I said at the beginning of this trial in my opening statement. I challenged SyCorAx and its lawyers to explain how they got these secrets; I challenged them to produce someone who actually worked in SyCorAx’s laboratory on the patents they claim are theirs. Why? Because without producing that witness, the only conclusion you can come to is that these formulas and all the details about Milano’s patents were stolen. There is no dodging this fact. All SyCorAx and its lawyers had to do was to come up with just one witness, any witness, who could establish that he was the source of those secrets. But they couldn’t. And they didn’t.
“I want you to look at that empty witness stand at the front of this courtroom. That is all the evidence SyCorAx produced in response to my challenge, an empty chair. No witness, no testimony, no evidence. Don’t you think if SyCorAx had someone, anyone, who could have proved me wrong, that person would have been SyCorAx’s first witness? SyCorAx and its lawyers would have responded to my challenge, destroyed my defense, and proved their case.