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Playing the jury card: Samsung trying to get an Apple mistrial?

August 3, 2012: 8:19 AM ET

Why a seasoned lawyer might disrespect the judge in a multibillion dollar patent trial

FORTUNE -- Even a veteran court reporter like Alison Frankel was surprised when Samsung's lead attorney, John Quinn, approached judge Lucy Koh just before opening arguments in the high-stakes Apple v. Samsung patent infringement trial and threw the legal equivalent of a hissy fit in a last-ditch effort to get some excluded evidence (see here and here) before the jury.

Here's how Frankel described the scene in her On the Case column:

Dressed in a stylish blue suit with mussed hair, Quinn stood before Koh and said he had "been practicing for 36 years" and had never begged the court, but that now he was begging that she reconsider on the slides. Again, Koh said no.

"What's the point of having a trial?" Quinn said, his voice rising. "What's the point?"

Koh tried to shut him down. "Mr. Quinn, please, please, we have done three reconsiderations on this. You've made your record."

"Can I get some explanation..."

"Mr. Quinn, don't make me sanction you, please!" the judge barked. "I want you to sit down, please."

Savvy trial watchers will recognize that Quinn was setting ground work for an appeal. That's what Koh was referring to when she told him "you've made your record."

But what happened next suggests Quinn may be playing an even more devious game. Two hours later, he e-mailed the excluded evidence to several journalists covering the case, along with a paragraph of inflammatory rhetoric that, inevitably, got widely reported:

"The Judge's exclusion of evidence on independent creation meant that ... Samsung was not allowed to tell the jury the full story... 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."

Dissing a judge behind her back in a manner that's sure to get back to her might be considered a rookie move. But Quinn, the managing partner of the powerhouse litigation shop Quinn Emanuel Urquhart & Sullivan, is no rookie. His e-mail provoked Apple (AAPL) to call for extraordinary sanctions (basically, they want Judge Koh to hand them the case). To which Quinn filed a rebuttal that began:

"Apple's request is an affront to the integrity of the jury. Apple proceeds on the groundless assumption that the jury, already instructed by the Court not to read media accounts, will violate the Court's instructions and do precisely that."

"An affront to the integrity of the jury"? Really?

The evidence Quinn planted in the press is beginning to look like an Internet honey trap. Here's how it works: Some or all of the jury sees it, the judge finds out, and Samsung gets a mistrial in a case that was not exactly going its way.

We'll find out if the trap was sprung when proceedings resume Friday morning in San Jose.

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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