Samsung Hard-pressed to Get Second Bite at Apple

Samsung Digs Up Grounds for Appeal

This past week, it was revealed that Samsung had filed an appeal of the verdicts of of patent infringement in the celebrated case filed by Apple. Given the enormity of the verdict and its potential consequences for Samsung's ability to compete in the mobile phone and tablet market going forward, no-one is surprised that an appeal was filed, and filed quickly. What has surprised some is the grounds for the appeal: namely that at least one juror in the case was guilty of misconduct. Much of the focus has been on the jury foreman, Velvin Hogan, against whom Samsung has lodged two major complaints.

First, Samsung argues that Hogan failed to disclose his part in a lawsuit against his former employer, Seagate Systems (Samsung is the single largest shareholder of Seagate). Hogan's defense to these charges is that he answered every question truthfully on his written questionnaire and during voir dire. The questionnaire only asked about litigation participation in the past 10 years (Seagate case was 10 years ago). During voir dire, when asked to volunteer experience with litigation, Hogan raised his had in the affirmative. Samsung's lawyers then questioned him about the first lawsuit he mentioned. They neglected to ask him whether there were any additional cases to discuss and moved on to the next juror. Samsung's position seems to be that Mr. Hogan had an affirmative obligation to alert the court to his Seagate lawsuit, notwithstanding the fact that no-one asked him about it.

The second complaint against Mr. Hogan, and potentially a few of his fellow jurors, is more interesting from a doctrinal pespective. Samsun argues that Mr. Hogan acted as an unsworn expert witness, by bringing to bear during deliberations his own knowledge of computer technology and patent law.

Does "Impartial" Mean "Stupid"?

At the risk of honking my own horn, allow me to quote an email I sent to my TrialGraphix colleagues on August 27, immediately after the first interview with Mr. Hogan was published:

It is worth checking out this brief article about the engineering and legal expertise of jurors on the Apple-Samsung jury. As a general rule, jurors are not permitted to act as "unsworn witnesses" bringing to bear personal experience and expertise during deliberations. The line defining what it permissible is, of course, quite fuzzy. But there is quite a bit of appellate law on this matter and verdicts have certainly been reversed for less than appears to have taken place in this instance. I am considering writing a blog post on this topic, with an eye towards having something topical that could be distributed to potential clients.

Well, OK, I admit my horn is a bit tarnished, given that I didn't get around to writing that blog post until now. But I'll give myself a wee pat on the back for seeing this coming.
The appellate law on this topic is not really in Samsung's corner. Let's consider a few things working against the appellant here.

First, almost every opinion regarding prior  juror knowledge affecting deliberations begins with some language about how jurors "are not required to leave common sense at the courtroom door, nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts at hand, to the end that their action may be intelligent and their conclusions correct." (State v. Jennings, supra, 125 Conn.App. at 811). As such, the fact that some of the jurors, residing in Silicon Valley, knew something about technology and patent law does not preclude them from rendering an impartial verdict.

To hold otherwise would require absolute ignorance among jurors. Henny Youngman's old joke about "12 people too stupid to get out of jury duty" would be painfully true and officially endorsed by the judiciary. Judges have not been willing to go quite this far. It has been a difficult tight rope act to preserve the illusion of an impartial jury as one comprised of "impartial jurors."

Samsung Needs to Look in the Mirror (or Facetime with itself)

Second, the attorneys in this case were given the opportunity to both submit and evaluate a supplemental juror questionnaire (SJQ) and partake in attorney-conducted voir dire. It appears that these methods did elicit quite a bit of information about all of the prospective jurors. That said, the jury was ultimately chosen in one day, with each side only having 20 minutes to conduct voir dire after the judge had concluded her questioning.

Samsung appears to have dropped the ball when questioning Mr. Hogan. To be entitled to relief, they would have to argue that, but for the time restrictions on voir dire imposed by the court, their lawyers would have uncovered Mr. Hogan's dark (and prejudicial) past. In addition, I imagine Samsung would have to show that the time restriction was imposed over its objections.

As one of my colleagues replied to that initial email, "I think Samsung should sue its jury consultant."

Has Samsung Finally Invented Something New?  

Third, almost all of the appellate decisions reversing a verdict on the grounds that a juror acted as an unsworn witness involve criminal cases. While the stakes were certainly very high in this case ($1 billion plus effects on future competition), the courts typically treat a criminal matter as qualitatively different, in that a person's liberty is in jeopardy. The seriousness of a conviction, embodied in the elevated burden of proof, carries over to "miscarriage of justice" analysis that follows a conviction. There are scant appellate opinions in civil cases in support of Samsung's position. In fact, acursory search hasn't turned up any. Certainly, all of the cases I assign in my law school seminar, "Trial by Jury," on this topic involve criminal verdicts.  

This is not to say that the lessons from the criminal arena cannot be applied to a civil case. Only that a judge who wants to distinguish this case from others where relief was granted will have an easier time doing so, due to the derth of applicable civil cases.  

It's not like the jurors were drunk or high  

Fourth, the issue of jurors serving as unsworn expert witnesses straddles the border between "extrinsic influences" on jurors and "internal thoughts processes" of jurors. To the extent that a court views this as a question of internal jury decision-making and deliberations, FRE 606(b) (and the state equivilants) preclude asking jurors to testify on the question. It seems impossible for Samsung to make its case that some jurors improperly influenced the verdict without digging into the deliberations themselves, a topic that is verbotten under 606(b). The court would have to determine that this juror expertise is an "extrinsic influence" to open up Pandora's box. Clearly, appellants have cleared this hurdle in a few criminal cases; it remains to be seen whether Samsung can do so in a civil matter.  

It should be noted that the courts have found creative ways to construe things as instrinsic (cocaine use, sleeping, drunkeness, mental retardation) in order to avoid authorizing hearings about jury deliberations to impune verdicts. A judge who wants to dodge this issue can certainly find precedent for not interpreting what happened in the Apple-Samsung jury as an "extrinsic influence."  

Verdict 2.0?  

From a doctrinal perspective, I think that Samsung is on shaky ground and its appeal is a long-shot. That said, this area of law is sufficiently squishy that a creative judge could probably find a way to grant Samsung's appeal if she wanted to. But, in the U.S., what judge will really want to? Apple is the darling of U.S. industry. Without Apple, Google (and arguably Microsoft), it feels as if the United States has ceded technological production (if not innovation) to other countries. While a judge would be unlikely to admit that she wants Apple to win this one, any social-psychologist will tell you that judges aren't immune to implicit bias any more than the rest of us.  

The breadth of the verdict does seem to be a bit extreme. Apple was granted ownership over every single aspect of its product, including the "rounded rectangle" shape. I would not be surprised to see some appellate court limit the scope of the verdict and reduce the damage award dramatically. If this happens, however, it won't be because someone on the jury claimed to know something about patent law.