The next phase of the Apple Samsung case: straw polls and sandwiches

Jury

Lawyers will make closing statements today in what has been dubbed the technology trial of the century. The epic dust-up between Apple and Samsung is far from over, though. Here is a plain English guide to how the jury will decide the verdict, how the judge can overrule them and what happens next.

What exactly is going on today?

After almost a month long trial, this is the finale for Apple and Samsung lawyers. Each side will sum up for the jury why their opponent ripped off their technology, and why the other sides’ patents are not valid. The judge will then give instructions to the jury and tell them to complete a 22-page form that will provide the answers.

The form makes an IRS look simple by comparison. It requires the jury to say if a dozen or so Samsung-related products like the Droid phone and Galaxy tablets violate patents for the iPhone and the iPad. Likewise, jurors will have to say whether Apple’s products infringed the Samsung gadgets. If the jurors find infringement, they will also have to decide if the copycat did it on purpose and how much they should pay. And there is more. They will also have to plumb other arcane corners of intellectual property law like “trade dress” and “prior art.”

To get a flavor of what the jury will face, here are sample questions from the proposed jury form:

What will the jury do then?

Possibly as soon as today, the nine jurors will march off to the jury room to hash things out. Typically, they begin by electing a foreman although there is no requirement for them to do so. (Alas, there is no “hipster juror” like the one who provided laughs in a recent New York trial.)

Will they just dive right in or take a straw poll first?

According to Brad Lyerla, a senior patent attorney with Jenner & Block, the first thing most juries do is take a straw poll about the verdict. Lyerla says jury research shows that the outcome of this initial poll will almost always reflect the final verdict — even if that straw poll produces a tight 5-4 vote. What this means is that a majority of the jurors will have already made up their minds and will eventually persuade the others to join them.

Does the jury have to be unanimous?

In this court, yes.

What if they can’t reach a consensus?

If they can’t agree on anything, that means a mistrial and back to square one. But there are dozens of issues to decide in this case and the jury will almost certainly come to a decision on most or all of them. Those decisions will stand and a failure to reach agreement on some questions will not derail the whole case.

How long will it take the jury to reach a decision?

“There are many claims and different issues of law. This is not an up-or-down, yes or no type of verdict. It will be a matter of days. It won’t be less than a day,” said Peter Toren, a veteran IP litigator with Weisbrod, Matheis & Copley.

Will there be any clues ahead of time?

“The jury room is sacrosanct,” said Lyerla. Lawyers might hear rumors from a bailiff that the jurors were yelling but otherwise the process is secret. The jury may also send out a question to the judge. “People like to read those questions like the entrails of a goat.”

Does the jury get to leave? 

If Judge Lucy Koh orders them to remain in the courthouse, the court will pick up the tab for a lunch order. “One day it’s pizza day, or hamburgers or sandwiches .. It’s not lavish,” said Lyerla. “It’s like an office setting where you’re having a meeting at lunch time.”

Is it the end when the jury finally issues a verdict?

It’s the end for the jurors but, for Apple and Samsung, it’s more like the end of the beginning. Both Toren and Lyerla say the companies will likely ask for a “judgment not withstanding verdict,” a request for Judge Koh to replace the jury’s conclusion with one of her own. She can do this if she concludes no “rational jury” would have come to a particular decision. Once the final verdicts are entered, the companies can then appeal. “This could go on for a year,” said Lyerla.

(Images by Everett Collection and Alita Bobrov via Shutterstock)

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