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Two weeks ago, I wrote the “SCO should win” side for a debate surrounding the outcome of The SCO Group vs. IBM trial. To write it, I reviewed SCOs allegations, simplified them down to the core arguments and created what I envisioned SCOs legal team would present as an opening statement in court. I even fact-checked it with SCO to ensure that it matched up with the companys beliefs. It did.
At the same time, Steven J. Vaughn-Nichols wrote a counter-piece based largely on the arguments that IBM and the Linux community were making to discredit SCOs position. His approach was different because his background is different from mine. He covers the subject more than I do, and he did a very credible job of stating the Linux side. The general reaction from the Linux community is that he mostly got it right.
Why look at the arguments coming from both sides? I envisioned the debate as a way to help readers to understand the entrenched positions on both sides. What I left out was the “why” behind my approach, and Ill correct that now.
Ive had several careers. The first one was with the company now known as The Walt Disney Co., and the second landed me my first executive title (head of operations by way of director of marketing). The subsequent falling-out between the partners who owned that firm led to the third, which was in litigation, with my goal being that of becoming a judge. I spent about two years training for the position, but after those two years, I realized it wasnt for me. I did, however, learn a lot about litigation.
In addition to the training, I was personally involved in one property ownership trial that resulted from that partnership dispute and which set longevity records (over 13 years). It generated legal fees greater than the value of the property. Even worse, everyone involved, including me, went around armed to the teeth, convinced that assassination was a very real threat. It stopped being fun after about 30 seconds.
Next page: The rules of litigation spell SCO success.
Rules of litigation
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.
Reading a jury
Learning the Dynamics of a Jury. In a jury trial, an experienced litigator, like David Boies—Boies leads SCOs litigation team and is credited with taking down Microsoft in its recent antitrust case—can take a little evidence, capture the jurys heart and overcome most obstacles. That is, until he or she runs into an immovable object—namely, a comparable talent on the other side. With jury trials, often it is as much about courtroom charisma as it is about evidence.
Also, in long trials, the jury is made up mostly of seniors, because they have the time for the court. These folks tend to be very conservative, they dont understand technical arguments at all, and their decisions often pivot on values that were put in place in their minds decades ago. This is only a slight disadvantage in some cases but can be deadly when litigating finer points of technology.
Think of your grandmother or grandfather. Would they know what open source is? Would they even know what software is? How would you explain something like the GPL to them? For anyone over the age of 50, if you buy something, it is yours. On top of that, many retired people regularly fight off people who are, in their minds, using “legal mumbo-jumbo” to take their hard-earned money or property.
Consider the SCO vs. IBM case. With whom do you think the jury will identify? Before you answer, heres another issue: Those venerable jury members probably dont trust anything big, either.
Next page: SCOs likely argument.
SCOs likely argument
The typical jury, in the artificial courtroom environment, will find my depiction of SCOs likely argument quite compelling.
Heres that story in a nutshell:
- Small company buys product.
- Big company steals product.
- Big company attacks other companies.
- Small company attempts redress through the courts.
- Small company gets violently attacked.
If the facts support this simple story, I believe a typical jury will have a hard time not finding for the small company. Particularly if I toss in the fact that the small company is run by Mormons and the big company is portrayed like WorldCom or Enron.
Comparing SCO vs. IBM with DOJ vs. Microsoft. Before I leave you, Id like you to think about a couple of things. In the Microsoft vs. Department of Justice action Microsoft believed very strongly that they were in the right and could not lose. The Justice Department started the case without any proof other than Netscape allegations. Microsoft hired the best legal talent available, including a number of ex-U.S. Attorneys General. The Justice Departments goal was to get Microsoft to unbundle its browser from its operating system. By the end of the trial, if the judge could have given Microsoft the death sentence, he would have. Boies was the top litigator on the Justice Department team.
In court, two sides enter, both believing they are right beyond the shadow of a doubt. But one side is always wrong. Wonder whats going to happen with the IBM vs. SCO trial? You can draw your own conclusions, based upon the scenarios Ive laid out.
Ill leave you with my own facts:
- I started looking at this case out of curiosity that resulted from a statement from the Linux community that stated that SCO had no evidence.
- I really didnt care who wins. Linux simply wasnt my beat. It just seemed impossible that this statement was true, given what little I knew about the case.
- Over a very short period of time, the Linux community itself convinced me that SCO would likely win.
- Ive been on several juries, and Ive been foreman every time.
Were someone to ask me right now who I think is in the right, and I was on the jury with all of the ethical and legal implications, I would find for SCO.
Think about it.
Rob Enderle is the principal analyst for the Enderle Group, a company specializing in emerging personal technology.