Samsung Lawyer's Trial Antics Aimed at Another Audience

Amy Miller

The Recorder

08-14-2012

John Quinn — crazy, or crazy like a fox?

As the Apple/Samsung trial enters its third week, much of the buzz continues to center around the famously aggressive trial lawyer's clashes with the judge. Assuming he isn't just a hothead, what's he trying to accomplish?

Probably two things, suggest legal strategists and those familiar with Quinn's style. Jumping up and down in front of U.S. District Judge Lucy Koh about evidence she excluded is a way of signaling to the court of appeals just how pivotal Koh's ruling was. And releasing a statement to the media about the evidence? That was probably aimed at consumers rather than Koh and the jury.

The Quinn Emanuel Urquhart & Sullivan managing partner ran afoul of Koh even before opening statements began when he literally begged her to admit the excluded evidence.

When Koh found out about the press statement — which highlighted an excluded slide that showed a Samsung mobile phone design before Apple Inc. introduced the iPhone — she threatened sanctions. Later, Quinn flouted a court order when he made reference — in front of the jury — to an injunction blocking sales of a Samsung tablet.

Apple is seeking billions in patent damages, and for a variety of reasons, Samsung Electronics is seen as vulnerable. That may explain the run-ins with Koh, a 44-year-old judge appointed by President Obama just two years ago: Quinn is laying the groundwork for a potential appeal to the U.S. Court of Appeals for the Federal Circuit based on that excluded evidence.

"I'm sure Samsung will appeal on that point," said Mark Lemley, director of Stanford's Program in Law, Science and Technology and an IP litigator at Durie Tangri in San Francisco who has done work for Google Inc.

Quinn's tactics may have irked Koh, but his over-the-top entreaty about excluded evidence could help Samsung should it lose at trial, said Raymond Cardozo, an appellate specialist at Reed Smith in San Francisco. It's not enough to show an appeals court that the trial court made a mistake. Lawyers have to show that it was an outcome-changing mistake.

"The passion and the fervor with which he made the case that this evidence is crucial is helpful," Cardozo said. "When you are later arguing on appeal that this ruling was a complete game changer, it helps to show that's the way you behaved at the time."

But Samsung would also have to show that Koh's exclusion was an abuse of discretion. So far, her actions don't meet that standard, said appellate specialist Jerome Falk Jr., a partner at Arnold & Porter in San Francisco.

"The judge is being mature and professional," Falk said. "I don't care what the lawyer does. It's what the judge does that the courts of appeal care about. Trial lawyers sometimes try to provoke judges, but that doesn't matter as long as the judge keeps her cool."

Quinn's bombastic demeanor stands in contrast to the partner who is doing most of the talking in front of the judge and jury, Charles Verhoeven, who's taken a low-key but dogged approach. And perhaps that's why Samsung wanted Quinn to show up when trial opened, said Neil Smith, an IP litigator at Ropers Majeski Kohn & Bentley who's been in the courtroom watching the action. (Quinn declined to comment.)

"There are client dynamics at play," Smith said. "The client may have felt it was important in the eyes of the public to look vindicated that they were not a copier and let the public draw their own conclusions."

But getting on a judge's bad side carries risks.

Judges make decisions in a number of ways about what comes into the courtroom, and the perception of a lawyer's behavior can affect those decisions, sometimes negatively, said Robin Feldman, a law professor at UC-Hastings and author of the book Rethinking Patent Law.

"Judges are human," she said. "And I would say that his behavior was tremendously aggressive and risky."

Just minutes before the jury entered the courtroom to hear opening statements, Quinn stood up and told Koh, his voice rising, that he'd "been practicing for 36 years" and had never before begged the court but he was begging her now to reconsider admitting the evidence, a request made several times before, but repeatedly denied because it had been produced too late. Koh refused, and when he continued to argue, she snapped.

"Don't make me sanction you, please!" Koh said. "I want you to sit down, please."

Hours later, Quinn released the media statement directing reporters to the disputed evidence. Apple's lawyers demanded sanctions, including a ruling that Samsung had infringed its design patents, and Koh demanded an explanation.

Quinn filed a declaration saying he'd done nothing wrong, and that his actions were protected by the First Amendment. But Koh has kept open the option of reviewing the situation more closely after trial.

When he referenced Koh's pretrial injunction blocking sales of a Samsung tablet before the jury, he apologized.

"I have a difficulty believing that was not intentional," Koh told him.

Timothy Holbrook, a professor at Emory University School of Law who specializes in patent law and patent litigation, is skeptical that Quinn's antics will matter much in any appeal. Quinn's behavior, he said, "is comparable to a A Few Good Men, when the Demi Moore character 'strenuously objected' to the judge's decision," Holbrook said. "Not necessary."

But Holbrook thinks Quinn may have more success in the court of public opinion, where Samsung wants to combat the idea that it's an IP thief. "I don't think I have seen this much effort to address the PR side of things in an IP litigation case before," Holbrook said. "These tactics tend to be reserved for celebrity-type cases."

This article originally appeared in The Recorder.