Wanted: Shades of Gray

Q: What percentage of your cases goes to trial?

A: I think the cases that are black-and-white resolve early. It becomes pretty apparent to both sides that these are the facts, and this is the law, and this is how it’s going to come out. But that’s not the majority of cases. The majority of cases that we handle are pretty complex and they involve shades of gray. Almost all IP cases, frankly, involve shades of gray. And the cases that go to trial are the grayest ones: the ones where each side has a position that’s tenable, and has arguments in its favor, and it’s a little harder to call how the case is going to come out. The parties can’t come to closure because each side has a pretty good argument.

Q: Do you have a preference? Black-and-white cases or the grayest of them all?

A: Oh, definitely the grayest of them all. Definitely like to go to trial. Most trial lawyers like to go to trial.

We recognize that that’s rarely the goal of our clients, however. All along your representation of a case, you’re trying to resolve it. You’re always looking for opportunities to resolve it or opportunities to bring a motion that will end it or cut it back. Those are the things you do on the way to trial. But I think for a lawyer, the very best cases are those that present a challenge and that get you thinking strategically and bring you into different areas of the law and legal analysis.

Q: Of the cases that went to trial, any stand out?

A: A copyright trial I did years ago, where I represented DIC Animation and Hallmark and United Feature Syndicate, Artisan Pictures and Mattel. It was a case brought by the widow of a very famous screenwriter, Woody Kling, who had written for such programs as The Carol Burnett Show and All in the Family. He passed away and his widow claimed he was the author of these very successful children’s animated programs [Rainbow Brite and Robotman], which led to a host of products: books, dolls, paper plates. It was a huge copyright case against 12 defendants. We managed to get seven of them out on summary judgment based on arguments of joint authorship. But we ended up going to trial for the remaining five defendants.

That was a case that worried me. You know, you have a widow of a famous screenwriter suing big corporate clients. When you represent large clients and substantial companies, especially against a sympathetic individual, your presentation and how you handle the case has to be sensitive to the parties and how a jury is going to perceive them. We thought we were going to win because we felt we had the evidence on our side. What surprised me was we had a 45-minute defense verdict.

All along, my partner and I agonized. Is the jury just going to say, “Gee, these defendants, they can handle it. They can pay. So who cares what the facts are?” You wonder about that. But I have great faith in the jury system. I have been pleased pretty much in every case—how the juries have handled the facts of the case.

Q: So you wouldn’t have had those doubts if the plaintiff had been another company rather than a widow.

A: That’s more typical. And the disparity between big company and small company—it just doesn’t make much difference. We usually debrief juries after a jury trial. We try to talk to jurors and find out what drove their verdict. And I really haven’t heard that “size of a company” has been a big factor.

Q: Any surprises from these debriefings?

A: There are always surprises. I can tell you one that stands out from a trial I had for a company called CalComp against LaserGraphics. We won that case, and afterwards we were debriefing the jury and … There’s all these studies done: Male lawyers, female lawyers, is there an advantage or a disadvantage? I have read that one advantage to being a female lawyer is that people think you’re more credible. My opposing counsel on the case was a very good attorney. It was a long trial—12 weeks, 13 weeks—and we’re debriefing the jury and a couple of the guys on the jury came up to me and said, “You know, it really made us mad when Mr. Oswald objected when you were questioning the witnesses.” I looked at them and said, “Oh?” They said, “Well, you know, it just seemed like he was such a bully.” And I thought, “Wow.” Certainly I was objecting when he was questioning witnesses.

It’s also interesting to get their perceptions of the witnesses. You work hard to prepare your witnesses for jury trial: to explain to them courtroom demeanor, and how important it is to look at the jury, to not lose your temper, all of those things. Typically the lawyers on both sides are aware of witnesses they think are more credible than others; but what’s interesting is when the jury picks up on the same thing. They tend to. They tend to pick up on everything going on in the courtroom. They can tell the relationships of people who come to watch the trial. You tell everyone on your side of the case that when they come to court, they are not to express emotion while the other side is up there testifying; they are to be polite and quiet and observe appropriate demeanor. Because the jury watches everyone.

Q: Is there a concern about overpreparation—about preparing witnesses away from authenticity? Or at least the perception of authenticity?

A: There’s always a danger that if you scare a witness about, you know, “Look at the jury, sit up straight, answer the question, don’t volunteer,” that you’ll make your witness paralyzed or wooden.

I’m not a fan of overpreparation. I do fairly limited preparation of witnesses—for deposition or for trial. Certainly I go through the issues with them, find out what they know. If it’s my witness, I’ll tell what questions I’m going to ask. If it’s for cross-exam, I’ll tell them what to expect. But I keep it to a minimum of time. And I usually tell them to relax the afternoon before they have to testify. For exactly the point you’re making: I think a lot of lawyers frighten their witnesses. They drill them on questions. They just drill them so that they’re almost robotic. Even when they’re telling the truth they look like they’re not telling the truth, because they have that look on their face: “Wow, is this the right answer? Am I doing the right thing?”

Q: Is it advantageous for you, in this regard, to represent companies? Since your witnesses might be CEOs who are used to public speaking?

A: It’s very unusual in an IP case to have your witnesses be people who have testified a lot—if they’ve testified at all. Typically your witnesses are going to be scientists and engineers. They’re hard to prepare, because, depending on the person, some are not particularly verbal.

You’re [also] going to have some high-level people, whether it’s a small company or a big company, who are used to speaking to crowds, and who are very articulate. With those people, your challenge is different. Your challenge is to get them to answer the question and not make a speech.

Q: So for CEOs, you try to get them to tamp it down a bit. Scientists, bring it up a notch.

A: I’ve met middle management people who are great speakers and great with the process. I’ve met people who are wonderful people but who freeze up no matter what you do. You work with all types.

Today, in the IP world, you have a lot of people whose native language is not English. That creates a lot of issues at a deposition. You really have to think about whether you need a translator.

Q: I assume there’s a disadvantage to having a translator.

A: There’s almost always a disadvantage to having a translator. It makes the process a lot more cumbersome but sometimes you can’t avoid it. We have a trial coming up and we’re going to need some translators for our witnesses. Some of them are German. They speak English … but not well enough.

Q: That also puts a huge burden on the translator, I would imagine.

A: And sometimes you have competing translators. I had a deposition of a Chinese witness a few years back and there was this concern: You’ve got a translator and she looks pretty good, but we think we’ll have our own there, too. Now I’ve never seen a court allow that. There are certified translators whom the court accepts and you just need one. But a lot of times at deposition you’ll have two because the other translator is making sure your translator isn’t secretly giving the witness the question. There’s distrust among lawyers. [Laughs]

Q: In that deposition, did they wind up disagreeing on the translation?

A: Ultimately we had no problem. But there were a few times during the deposition where we stopped, and took a break, and the translators spoke to each other in their native tongue and got it all figured out.

Q: Earlier you mentioned prepping witnesses for cross-examination. How do you know which questions will be asked by the opposing attorney?

A: Obviously you don’t know. But you have a deposition they took, and you know what the issues are, and you know what kind of information the witness has. So you say to them, “You’re going to be challenged on this. I know you think that X was invented on X date, and it was composed of this genome, but the lawyer on the other side, here’s what they think. And here’s the evidence they have.” I might show the witness documents: “These are documents they are going to show you, and if they’re your documents they’re going to ask you to explain them.” Some lawyers actually do a cross-examination drill where they pretend to be the other side. I’ve done that with some witnesses who might want that or just might need to practice. [But with] the majority of witnesses, you don’t need to do that.

Q: Are you ever surprised by the cross-examination in court? Where you thought, “Wow, I didn’t see that question coming”?

A: No.

Q: What drew you to the law?

A: I always wanted to be a lawyer from early on but didn’t really see it as a viable career path for myself. A lot of things have changed for women over the years.

I started out thinking that I would be in business. I had a job in business, I was going to graduate business school, and, you know, I just didn’t like it at all. There were a lot of things going on in my life at the time—I was pregnant with my first child—but my brother was going to take the LSAT and I said, “I’m going to take it with you.” We studied together and took the LSAT together. And we scored within a point of each other. Which is like a bid for genetics.

So I did that. But I didn’t go [to law school] for five years. When my test scores were about to expire, and I realized I had to make a decision—I had two children by then—I thought, “I just have to do this.” And I loved it from the first minute.

Q: What was the reason you always wanted to be a lawyer?

A: It was basically TV. I couldn’t get enough of reading about lawyers and watching TV about lawyers. No one in my family was a lawyer.

Q: What did your parents do?

A: My mother was a housewife and my dad owned a grocery store: Stop-N-Save in Chicago. We all worked there. [All the kids] were all pressed into service. My parents, my relatives, were not college-educated. It was really big that all three of us went to college.

When I started law school, I had a five-year-old and a two-year-old. It was a big decision because of family issues—to go into a full-time program. It actually worked out great. My son was in school already, kindergarten, but they had a program where you could be there all day. My daughter went to a Montessori school right across the street. The funny thing is she got interested in the law. When she was five, she wrote this composition in her first-grade class, saying “When I grow up, I want to wear a suit and work at my mother’s law firm.”

Q: And now she is.

A: And now she is. We laugh about that. But she went straight through, the way people do today. Mine was a little more disjointed. [But] in law school I recognized right away that it was right for me. And I recognized right away that intellectual property was where my interests lie.

Q: You knew that in law school?

A: I knew that in law school. Going in, like most people, I thought I was going to be a criminal lawyer. I don’t think I even knew what patent law was. But I got so interested in it because of the science and engineering. I thought, “This is great. You can practice law but always be on the cutting edge of new things.”

Q: Have you surprised anyone with your knowledge of cutting-edge technology?

A: Yes. My son was a microbiology major when he was at UCLA. (He ultimately became a doctor.) He was actually working on the Human Genome Project that was going on at the time. And he was completely surprised that I knew what he was talking about. But because of my representation of Genentech, of Roche, of Abbott, I’ve done all kinds of cases dealing with genetic engineering, genetic products and biotech products, and I can read the genetic code. So that was kind of fun.

And the fact that I was his mother [and knew all this], that absolutely stunned him. You know what most people think: Their parents just don’t have it together.