Example 14.6

Takeaway point 14.6: Motions can be very, very short.

You should perfect every motion you write because you are advancing not only your clients’ causes but also your own reputation, which sloppiness or corner cutting will jeopardize.

Some motions even confirm the quip that “90% of success is just showing up.” This principle was in full operation when a jury awarded more than $1 billion to Apple, which had alleged that arch-rival Samsung infringed its patents. Samsung’s counsel knew that the jury had decided the case quickly — suspiciously quickly, which was likely an awful sign for Samsung. The speed also created a risk that the jury had, in its haste, made mistakes that Samsung might be able to exploit on appeal, but only if the jury clarified certain factual findings in its verdict form. Rather than simply waiting to see what the jury did, Samsung’s lawyers raced into action and instantaneously asked the judge to force the jury to stay in court while Samsung reviewed the jury form. Keep in mind that Samsung filed this motion before the jury announced its verdict. The entire motion appears below.

Source: Samsung’s Request for Thirty Minutes to Review the Jury Verdict Form Before the Jury is Dismissed for the Purpose of Seeking Clarification of Potential Inconsistent Verdict if Necessary, Apple, Inc. v. Samsung Electronics Co., No. 11-cv-01846-LHK, 2012 WL 3633666 (N.D. Cal. Aug. 24, 2012).

Remember that parties must confer before the movant files its motion.

Samsung’s lawyers demonstrate stellar advocacy here. Even though they are in the throes of trial and know that they have likely lost a huge verdict, they are still fighting to protect their client. They carefully refer to a “possibility” that the argument “may be deemed waived." This phrasing protects the company; on appeal, it could still argue that the issue has been preserved even if the judge denied this motion. This phrasing prevents Apple from stating that Samsung conceded that “the issue is waived.” This sentence reflects how experienced lawyers develop the intuition — muscle memory — of when a phrase concedes too much or could be deployed against their clients.

Apple declined to consent to this motion, probably to prevent Samsung from gathering information that would help it dismantle the jury award on appeal. Even though the jury had not announced its verdict, Apple expected to win; a blogger at the courthouse described Apple’s counsel as “smiling" and “in a polo shirt” — confident and relaxed. Public records tell us when Samsung’s lawyers filed this motion, but not when they wrote it. All of the likely possibilities are impressive: they may have planned to file this motion all along just in case the jury award was adverse (good planning), or may have raced into action and filed the motion within minutes of learning that the jury was back unusually soon (good adaptation to an ominous sign). Either way, this short motion helped to strengthen Samsung’s billion-dollar appeal. Filing it fast mattered more than anything else.

Samsung probably debated whether to ask for more or less time. An hour might have sounded like an imposition on a jury that had labored for weeks and was ready to go home. Fifteen minutes might have provided too little time to review the twenty-plus-page jury form. Samsung also knew that the presiding judge was a no-nonsense jurist. (During the trial, for instance, Judge Koh responded to a motion to call witnesses by saying “Unless you’re smoking crack, you know these witnesses aren’t going to be called.”) So Samsung’s request was almost certainly a carefully calibrated remedy that adapted to its need, to the dispute, and (above all) to the judge. Did it work? Samsung’s motion to keep the jury from going home hit the court’s electronic filing system at approximately 3:20 p.m. The judge granted the motion at 3:22 p.m., allowing Samsung to gather the information it needed to help its post-trial motions and its appeal. The brevity of Samsung’s motion helped it get a quick resolution.