Light of Day, page 21
Jordyn immediately asked to approach the bench and almost before I could join her, said, “Your Honor, a person has just entered the courtroom who is not associated with any of the law firms involved in this case. I thought he might be a member of the press, but my colleague, Mr. Stanford, recognizes him as a former employee of DOJ. As this case involves vital national security issues, could you find a way to excuse him without disclosing the nature of this case? I suspect this is another one of Mr. Patterson’s ploys.”
I smiled and turned to the judge, “Your Honor, I do know the gentleman to whom she refers. He is Solomon Banks, former Assistant Attorney General for the antitrust division. You’ll have to ask either him or Mr. Stanford why he’s here. I have no idea.”
“You’re lying,” Duarte hissed. “You were seen talking to him at the law school the other day. Your honor, I believe Mr. Patterson should be sanctioned for violating your gag order.”
Jordyn had just confirmed that I had been followed.
“Your honor, I did not mention any part of this case, or even that I might have any interest in it, when I met with my old boss the other day. Instead of allowing Ms. Duarte to make wild accusations, perhaps you could call him to the bench and ask him yourself.”
Jordyn continued to fume, seemingly unaware that her “colleague” Stanford was tugging at her sleeve.
The judge called Solomon to the bench.
“Sir, this trial is closed to the public. Please identify yourself and tell the court what interest you may have in this case.”
“Of course, Your Honor. My name is Solomon Banks, and I teach antitrust law at Georgetown. I met the Attorney General for lunch the other day, and we talked about old times. Jack’s name, I mean Mr. Patterson’s, came up, and I told him we saw each other from time to time. He told me that Jack and one of his best young trial lawyers would be going at it and suggested I might want to sit in. I didn’t have a class today so I thought I might watch today’s proceedings. I didn’t know the courtroom was closed. The AG didn’t mention it.”
Jordyn couldn’t help herself. “Patterson told you what the case was about, didn’t he? Your Honor, I’m sure Mr. Patterson has violated your gag order.”
Before the judge could say a word, Solomon addressed her in the stern tone that made many a law student cringe. “Young lady, the last time I saw Jack he told me he was planning to retire. He didn’t mention this case or any other for that matter. I’ve never known Jack to speak out of school. If you doubt my reason for coming here today, I’d be happy to get the Attorney General on the phone. He told me about the case at lunch.” Solomon pulled his iPhone out of his pocket.
Stanford came to Jordyn’s rescue, “Your Honor, the Attorney General told me only this morning that Mr. Banks might drop by. I apologize. I forgot to mention it to Jordyn, I mean Ms. Duarte. Mr. Banks is here as a representative of the Department of Justice, and at our next recess I will explain to him our national security concerns. I’m quite sure he will abide by the court’s gag order.”
The last thing Jordyn wanted was an antitrust expert sitting in on this trial. She didn’t apologize or even respond, but she did manage to get her temper under control. She returned to her table without a word, and I followed suit. I hoped she would forget her opening statement, but she didn’t. Within a few moments and despite her protestations about time limits, she gave a very well-prepared fifteen-minute opening.
“The plaintiffs were forced to bring this case against Mr. Ruple to prevent his theft of software designed, developed, and owned by my clients. The evidence will show…”
Her opening was a work of art, leaving the strong impression that my client was a gangster who had stolen her clients’ software. She intended to prove their case through testimony from an expert witness who would say that David’s software was an identical replica of what her clients had spent years in developing.
When she finished, she gave me a smug smile and sat down. Her train was back on track.
I rose from my chair and spoke to the jury, “Ladies and gentlemen, at the close of this case the judge will instruct you that anything said by the lawyers is not evidence, and that you should base your case solely on the evidence. Accordingly, I will not waste your time with an opening statement, because what I might say, or what Ms. Duarte just said, is not evidence.”
I emphasized the last three words, but as I got back to my table I turned back to the jury and said, “She just told you that the defendant stole her clients’ software. In case you’re wondering, let me assure you that not a word of her accusation is true.”
Before I could find my chair, Jordyn was out of hers. “Objection, Your Honor. What he just said might be his opinion, but it’s certainly not evidence.”
I responded before Moorman had a chance to react, “She’s right. What I said isn’t evidence. But for the record, all that stuff she said wasn’t evidence either, it was pure hogwash.”
Some of the jurors were laughing, but the judge wasn’t.
“Mr. Patterson, I find your conduct inappropriate. I have a good mind to hold you in contempt.”
Before he did, I responded in earshot of the jury. “Why, Your Honor? I could have wasted the jury’s time as well as yours with fifteen minutes of explaining why Ms. Duarte will not be able to prove her case. I thought the word ‘hogwash’ would get my point across in much less time. I mean no disrespect to counsel, but she will not be able to make her case. Would you like me to explain why? I have the time.”
The last thing Jordyn wanted at that moment was for me to demonstrate the deficiencies of her case. She gave Moorman a slight head shake, and he told her to call her first witness. I had upset her momentum, the jury was still giggling, and I had made my point.
“The plaintiffs call Dr. Arthur E. Thomas,” she announced.
Dr. Thomas had earned a PhD in software engineering from Stanford as well as a list of other credentials as long as his arm. It would have been fruitless for me to question his qualifications or expertise. He wore wire rim glasses, spoke in an educated tone, and sported a well-trimmed beard. He projected the very epitome of a learned college professor.
Jordyn greeted her expert warmly, thanking him for his appearance and verifying his academic credentials. She then verified that he had reviewed the plaintiff’s software and David’s application for trademark protection. Finally, she came to the crux of his testimony. “Dr. Thomas, in your opinion is the software claimed by Mr. Ruple the same as the one developed by the plaintiffs.”
“I’d say it is identical,” he said and then took the next hour to compare the software’s x’s and o’s in minute detail, pointing out the similarities on a big screen.
When he finally turned off his laser pointer, Jordyn asked, “Dr. Thomas, in your expert opinion did Mr. Ruple steal his software design from my clients?”
He answered, “Most certainly. The coding is virtually identical, and in my opinion one person alone could not have been able to design this program.”
43
AFTER JORDYN CONCLUDED HER EXAMINATION and again thanked Thomas for his expert opinion, the judge called a recess for lunch. Not only did the break give the jurors much needed time to eat, but it also gave them time to talk among themselves about Dr. Thomas’s testimony. Despite the judge’s admonition not to talk about the case among themselves, we all knew they would. They always did.
As soon as Moorman rose, the marshal quickly took David’s arm to lead him back to his cell. He also swept up the cards David was working on, the ones I’d asked him to respond to. I watched calmly as they disappeared through the side door of the courtroom. I had no doubt that my questions and his answers were now in the hands of both Jordyn and Stanford.
I quickly objected, emphasizing again that I had been denied normal access to my client. My objection was quickly overruled—again.
Fortunately, I had seen this larceny coming, and while Jordyn was fawning over Thomas as his testimony ended, I’d switched the cards David had answered for new ones. The new ones asked far more interesting questions, such as “who won the NCAA National Basketball Championship in 1994?” and “who beat undefeated Georgia in the 1969 Sugar Bowl?”
Both Brian and Duke had noticed the switch, and we enjoyed a quick laugh when I returned to our table. We’d had our fun, but we hadn’t yet been able to slow down the opponents’ train. The proceedings were moving faster than I could have expected. Jordyn was confident again, and with Moorman’s help the trial could be over this afternoon. I had planned to reserve cross-examination of Thomas until I presented our defense, but with a little unforeseen help from David I decided on a different strategy.
David had slipped one note into Brian’s hand before he was taken away. It said:
Ask Him If Their Software Works!!!
I stared at his words—surely it worked. I needed to find out why David was so insistent. But the Marshall didn’t bring him back to the courtroom until the judge and jury had returned from their lunch break. I had no time alone with him at all. I was also wary of the adage that a lawyer should never ask a question when he doesn’t know the answer. I certainly didn’t know whether the software worked or not. I didn’t even know what it was supposed to do.
“Begin your examination, Mr. Patterson,” Judge Moorman directed.
I had decided to begin by making Jordyn and her co-counsel nervous.
“Dr. Thomas, may I call you Art?” I began.
If I continued to address him as Doctor, I would reinforce his credentials.
“I’d prefer you called me Arthur,” he replied with a smile.
“Objection, Your Honor. I believe Mr. Patterson should address the witness as Doctor or Doctor Thomas.” Jordyn interrupted.
Before the judge ruled, I responded. “Your Honor, if Ms. Duarte interrupts me after every question, we’re going to be here all afternoon and tomorrow, too. I didn’t interrupt her during direct even once.”
The judge didn’t want to slow this case down.
“Ms. Duarte, the witness said he wants to be called Arthur. You did a good job of establishing his credentials. Let’s move on. And please try to hold your objections to a minimum. Go ahead, Mr. Patterson.”
“So… Arthur,” I began with a smile. “You testified this morning that you examined the plaintiffs’ software line by line and then compared it to my client’s software line by line. Is that correct?”
“Yes, that is correct,” he answered.
“There are twenty plaintiffs in this case. Please tell the court which plaintiff developed the software.”
Jordyn was on her feet, but the judge stopped her. “It’s a reasonable question.”
Arthur looked confused.
“Do I need to repeat the question?” I asked, again with a smile.
He hesitated, but finally answered, “My understanding is that it was developed as part of a collaboration.”
“A collaboration? Oh, I see. You mean to say that twenty software engineers from twenty different companies all met in one room and developed this software? Is that right?”
Thomas looked uncomfortable, as did every lawyer for the companies. I turned and directed the barest hint of a smile toward Solomon, who was now sitting in the front row of the gallery.
“I have no information regarding how many engineers were involved. I was hired to compare the two software programs and to be an expert witness.”
“Who hired you?”
“Ms. Duarte’s law firm,” he answered.
“Then I’m sure Ms. Duarte prepared you for this next question, Arthur. How much are you being paid by Ms. Duarte?”
I don’t usually bother to ask about expert witness fees. But in this case, I wanted the jury to know that Arthur’s testimony had been bought and paid for, especially since I couldn’t produce my own expert.
Arthur relaxed a bit. “My fee is seven hundred dollars an hour for my review, and six thousand dollars a day for depositions and trial testimony.”
“I’m sure you’re worth it.” I mumbled loud enough for the jury to hear me.
“When did this collaboration of engineers who developed the software in question occur?” I was venturing into uncharted waters.
“I believe the coding was complete in May of 2023, but I feel sure they’ve done some tweaking on it since then,” he answered.
“Did they file for trademark protection for their software like my client did?”
“No, they didn’t. But that’s not relevant.” He had regained his confidence.
I knew the answer to my next question.
“And why not?” I asked.
“When it comes to software, it’s first to invent, not first to file. The plaintiffs finished in May; Mr. Ruple didn’t file for protection until June of 2023. As I testified earlier, it’s clear he copied the plaintiffs’ work.”
I was convinced the plaintiffs had copied David’s work, but without discovery I couldn’t argue with their assertion that they had invented the software in May.
“Arthur—how do you know my client didn’t invent his software earlier than May?”
Arthur gave me a kind smile. “Because no individual could have developed this software on his own. It is identical to the plaintiffs’ invention. Ergo, he had to have copied theirs.”
“Unless the plaintiffs stole his work and copied his design? Right, Arthur?”
Jordyn couldn’t stand it any longer.
“Asked and answered, your honor. Dr. Thomas has said more than once that Mr. Ruple is incapable of developing this complex a product on his own. Besides, the dating is clear. My clients finished their work in May. The defendant copied it and tried to patent it in June. Does Mr. Patterson have any proof that his client invented this software before May?”
Moorman was clearly bored. “Let’s move on, Mr. Patterson.”
“Yes, Your Honor. Arthur, how did my client steal the plaintiffs’ software?”
“Wh…what do you mean?” he stammered.
“I mean, Ms. Duarte has loudly and repeatedly alleged that my client stole her clients’ software. You have testified he copied it. But there is no public filing by the plaintiffs for trademark protection. Did my client find such dangerous software on the Internet?
He looked puzzled, as did the jury, but managed to come up with a response.
“No, Mr. Paterson, it is not on the Internet. Maybe he obtained it by hacking into their computers.”
“Oh, come on Arthur. It’s okay to admit you don’t know.”
“He had to have hacked into one of their systems,” he repeated stubbornly.
“You would have this jury believe that the biggest computer companies in the world don’t have protection from a lone hacker. Arthur, did any of the twenty plaintiffs or anyone at the companies they represent tell you how David Ruple got a copy of their software? Or even how it could have happened?”
“No.”
“So, you really don’t have any idea how my client could have stolen the software, or whether he did. Your response that he must have hacked his way into one, or even all twenty, of these very sophisticated computer systems was nothing but pure conjecture on your part.”
“Was that a question?” he asked, looking toward Jordyn. “Do I need to answer?” Jordyn looked dumfounded.
I had made my point. The problem was that I had no proof that David had developed the software other than his own testimony. To allow him to testify would in essence waive his fifth amendment rights, and I couldn’t take that risk. At least I had the jury wondering how my client “stole” the plaintiff’s product. I girded myself for the next set of questions I had for Arthur. Jordyn hadn’t asked, and I had to.
“Arthur, I’m curious about one point and a bit surprised that Ms. Duarte didn’t ask you in her direct. The prosecution has emphasized repeatedly how complex and special this software is. Can you tell me what it does?”
44
JORDYN AND STANFORD WERE BOTH ON THEIR FEET demanding a conference in chambers.
I asked within earshot of the jury, “Why all the secrecy, judge? All I asked was what it does.”
Judge Moorman ignored me and told the jury we would take a ten-minute break.
We waited in silence until the jurors had dutifully followed the marshal out of the room. Without introduction or permission, Jordyn turned quickly to Moorman. “Your honor, the nature and function of my client’s software is critical to our nation’s security. We can’t have our trade secrets exposed just to satisfy Mr. Patterson’s curiosity.”
I was ready for her objection. “Then drop your damn lawsuit, Jordyn.”
My language caught everyone off guard, and I continued before anyone could react.
“The prosecution has withheld access to my client, filed motions and briefs without letting me see them, and now they don’t want me to ask their witness what this software does, all in the name of “national security.” If their software is so special, so hush-hush, why sue my client?
“They opened their own can of worms by filing this lawsuit and getting their paid expert to testify that my client couldn’t have developed this software on his own. Well, he did. And the only way the jury will understand why he did, is for them to understand what it does.”
Moorman sighed and began rubbing his face with both hands, as if he could make the issue disappear. Jordyn’s objection had put him in a box. He knew I was right.
He finally spoke. “Mr. Patterson, I understand your concern, but I don’t see how I can let you follow this line of questioning.”
I pulled out my ace card. “Your Honor, if you rule in her favor, you will give me no choice but to take this matter to the DC Circuit, where I will seek a stay. I don’t want to; I’d rather proceed with the trial. But what this software does is critical to my client’s defense.”
Neither Jordyn or Stanford wanted either the subject matter or their shenanigans brought before the DC Circuit. Nor did the judge.
“What if I instruct the jury, and I will make it very clear, that they may not speak to or in any way communicate with anyone about what they are about to learn until I instruct them at the end of the trial,” Moorman proposed.
