Though it's impossible to say who's ahead on points after just a couple of days of court hearings in the Apple-Samsung patent dispute, there's little doubt that lead Samsung attorney John B. Quinn doesn't lack for chutzpah.
On day the trial opened, Samsung tried for the third time to enter as evidence documents that the company claimed would have proved Sony's designs predated Apple's ideas for the iPhone. U.S. district court judge Lucy Koh wouldn't allow it, so Samsung's legal team then offered up its own unique interpretation of "no" by promptly releasing the documents to the press.
Hardly a brilliant idea -- and one that may border on contempt of court. Unless, of course, Samsung was trying to get under Koh's skin. If so, then consider it mission accomplished. For toppers, the company also argued its case outside the courtroom by releasing the following email to the press (emphasis added):
The Judge's exclusion of evidence on independent creation meant that even though Apple was allowed to inaccurately argue to the jury that the F700 was an iPhone copy, Samsung was not allowed to tell the jury the full story and show the pre-iPhone design for that and other phones that were in development at Samsung in 2006, before the iPhone. The excluded evidence would have established beyond doubt that Samsung did not copy the iPhone design. Fundamental fairness requires that the jury decide the case based on all the evidence.
Translation: the judge needs a refresher course in the law.
Koh was so charmed that she promptly ordered Samsung to divulge who was behind this cri de coeur. In a brief filed earlier today, Quinn admitted that he had approved and authorized the words -- reminding the good judge that it was "a brief statement" not a "press release" -- while rejecting any assertions that that Samsung had violated legal or ethical standards by going rogue. Yes, an injustice begged to be righted but look elsewhere for the culprit. To wit:
These false representations by Apple's counsel publicly and unfairly called my personal reputation into question and have resulted in media reports likewise falsely impugning me personally.... Far from violating any order, Samsung's transmission to the public of public information disclosed in pretrial filings is entirely consistent with the Court's statements....
Quinn went on to explain that "Samsung's brief statement and transmission of public materials in response to press inquiries was not motivated by or designed to influence jurors," and that it's a question of "fundamental fairness" to let the jury make a decision "based on all the evidence."
One obvious risk: Quinn may have so prejudiced the judge against Samsung that the company shouldn't expect to get a break from Koh for the rest of the trial. (Koh is expected to issue a response to Quinn's brief either today or tomorrow.)
In 1998, when Microsoft squared off against the Department of Justice, the company had to replace Richard Urowsky, the Sullivan & Cromwell attorney who led its defense in pre-trial motions. There was nothing wrong with his credentials or his ability. In fact, Urowsky was sharp. But he so annoyed the judge -- nearly everything he did would drive Thomas Penfield Jackson wild -- that spectators were taking bets on whether they'd witness the first case in American jurisprudence in which a judge came off the bench to strangle one of the lawyers in his court.
Or Quinn may be building a paper trail for the inevitable appeal in case Samsung loses. Which is the more lawyerly thing to do. The Apple-Samsung trial has another month to go and working the ref just now may pay dividends later. It's sure a lot better than getting strangled.