Rules of litigation

By Rob Enderle  |  Posted 2004-04-07 Print this article Print

To really understand how the SCO vs. IBM case is likely to play out in court, its essential to understand the rules of litigation:
  • Two sides (sometimes more) go into the courtroom believing strongly that they are in the right and that justice will prevail (which translates into, "I will win").
  • During the trial, each side generally will focus on things that support this belief and ignore things that dont.
  • Both sides will conclude the other side is made up of liars and crooks. Both sides will carefully study the law. With the Web, that study has reached legendary proportions. Both sides will misinterpret it at least some of the time.
  • Regardless of all of the effort, one side will still lose.
Because trials were mostly boring, and because there was generally no way to actually know which "truth" was the "real" truth, I developed a cheat sheet to predict the outcome of the trial. Evidence. Typically, as an observer, you dont get to see the evidence until the trial starts. Even though the other side is entitled to see that evidence, they wont know how it will be used until the plaintiff actually presents it. Interestingly enough, in virtually every case I observed, both sides held off presenting evidence as long as possible. Why? To limit the other sides ability to discredit that evidence. You could never really trust the evidence, because both sides tended to mischaracterize it. Particularly in a jury trial, jury members often get lost in the arguments. Criminal trials were easier than civil because juries tended to trust law enforcement. But in a civil trial, both sides, much like a political campaign, spend a lot of time convincing the jury that their opponent is dishonest. I often think that is the real battle: If you can convince a jury that your opponent is a liar, you have all but won, unless your opponent does a better job on you.
Trials lacking juries, like the Microsoft antitrust case, are relatively easy to call because the judge generally starts signaling early whom she, or he, believes. But you have to watch these signals with an objective eye. Ive noticed that both sides tend to report back that "the judge is on our side." Of course, only one side is doing so accurately.
A jury trial, on the other hand, required more analysis of the legal team and the jury. Even so, it is incredibly difficult to read a jury. The SCO vs. IBM case, due to be tried this year in Utah, will be a jury trial. Next page: How to read a jury.

Rob Enderle Rob Enderle Enderle Group 389 Photinia Lane San Jose, CA 95127

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