The judge took the upholstered chair closest to the window and, after everyone found a place, said, “I suppose it's futile, but I'll ask anyway. Has there been any progress toward a settlement?”
“No, Your Honor,” Fischler said. “There have been several discussions since our last meeting with you. As you ordered, the two CEOs talked. They met in New York City. But there hasn't been any progress.”
Most patent cases, even major cases like Vaxtek v. St. Gall, would have settled by now. Seeley had seen violently adversarial parties reach agreement in the middle of trial. Twice, he had settled cases while the jury was out deliberating. Judges differ in how aggressively they encourage settlement and, from what Seeley saw in the files, Farnsworth had pressed the parties, but not hard. If she had met Warshaw, the entrepreneur who planted stakes to preserve the boundaries of his property, she would not have done even that. So long as Warshaw controlled Vaxtek, Seeley saw no possibility that the case would settle.
The judge took a pair of tortoiseshell half-frames from a drawer in the end table and opened the thick manila folder on her lap. Briskly leafing through the pages, she separated a single sheet from the pile. “I see you are visiting us from out of state, Mr. Seeley.” She handed him the document. It was the printed form used for admission pro hac vice. “You will find us very hospitable here in the Northern District.” She looked at him over the half-frames. “But if you want to be admitted, your motion will have to be in the proper form.”
Seeley looked at the paper and immediately saw the mistake. Where the form asked for the name of the highest court of the state in which he was admitted to practice, whoever filled it out had typed in “New York Supreme Court.” California calls its high court the Supreme Court, but in New York it's the Court of Appeals. Seeley glanced at Palmieri, who had taken a legal pad from his briefcase and was writing rapidly.
“Our requirements are modest, Mr. Seeley, but punctilio, you will agree, is important.”
Fischler was looking at the American flag across the room, jaw clamped to hide her amusement. Next to Seeley, Barnum put a hand to his mouth and cleared his throat, glaring at Palmieri. The coarse bully of two days ago was today disguised in a pinstriped suit and rep tie.
Seeley thought to say something clever, but decided to be safe. “I apologize, Judge. It was obviously an oversight.” Irritation leaked out of his words. “I can assure you, we will have our motion in correct form no later than two this afternoon.”
“The purpose of this meeting, Mr. Seeley, is to resolve all outstanding motions now, so we can get this trial under way.”
The judge was letting him know that she had authority over him, and that it was Seeley's job to accept that. One of President Clinton's last judicial appointments, she had been a class action plaintiff's lawyer, specializing in securities fraud lawsuits. It wasn't Seeley's field, but he knew that courts had adopted several of the innovative theories she'd advanced for her shareholder clients, altering the balance of power in these lawsuits. She was the savior of the little guy while making a lawyer-sized fortune for herself. Seeley also knew that Farnsworth was toying with him; she would grant the motion even if he didn't hand in the papers until just before jury selection began.
Farnsworth turned to the chair across from Seeley. “Ms. Fischler?”
“If Mr. Seeley's proposal is acceptable to the court, Your Honor, we have no problem with it.”
“Fine. You have until two o'clock this afternoon.” Farnsworth was continuing through the papers in the file. “Do we have all the stipulations, or are there some surprises for me here, too?”
“No surprises, Your Honor.”
“None,” Seeley said.
“I see here that your client is stipulating priority of invention, Ms. Fischler.”
“That's right, Your Honor. My client is aware of the court's interest in efficiency, and we thought it would help to move the trial along.”
Fawning like this, Seeley knew, won a lawyer nothing but a judge's disdain. Thorpe would not have said it.
The judge looked over her glasses at the Swiss lawyer. “The court is very grateful, Mr. Dusollier. I'm sure your employer had its reasons.”
The Swiss lawyer adjusted his tie and nodded, but said nothing.
The judge removed several paper-clipped pages from the folder. “I've looked at both of your witness lists-”
Fischler spoke before the judge could finish. “We have no changes, Your Honor.”
Seeley said, “We have one change, Judge.”
Farnsworth's frown told Seeley that he had misstepped. She wasn't interested in his witness lineup. She had been heading in a different direction when Fischler interrupted. Barnum either didn't see or didn't understand, and he leaned into Seeley. His whisper was hoarse. “What change? You didn't ask me.” Seeley smelled the peppermint on his breath.
“The reason I was looking at your lists”-Farnsworth turned to include Fischler-“was that both of you, but particularly your client, Ms. Fischler, are going to have to thin out your witnesses. I've decided that we can try this case in two weeks. That means each of you has twenty-four hours of trial time to spend however you want, on opening, direct, cross, and closing argument. But unless your witnesses talk very fast, you're going to have to do some cutting.”
Palmieri looked at Seeley before speaking. “We understood from our last meeting, Your Honor, that we had three weeks for trial, thirty-six hours for each side.”
“Well, I changed my mind. I have three months of cases backed up on my calendar, all of them ready for trial. No one seems interested in settling their cases.”
Fischler said, “All of our witnesses are prepared and ready to go, Your Honor. Each one's testimony is connected to the others'.”
“I'm sure your witnesses have been well-prepared and orchestrated, Ms. Fischler, and I'm also sure that they have been well paid by your client. But life is short and each of you can cut out three or four witnesses without inflicting a mortal wound on due process of law.”
Dusollier whispered something to Fischler, and she shook her head vigorously. “I was thinking about the record on appeal, Your Honor.”
“I appreciate your concern, Ms. Fischler, but if there's an appeal, this case goes to the federal circuit and the record will be just fine there. They haven't reversed me yet. I'll want to see your new witness lists Friday morning.”
Seeley had no problem with a two-week trial. But he should have told Barnum about his decision to drop Steinhardt as their lead witness, and it could take some time to bring the general counsel to where he would agree to Steinhardt's testifying lower in the order. “We have no problem with twenty-four hours, Judge.” He'd find an opening later to delay submission of the new witness list until Monday.
Farnsworth returned the folder to the end table and opened a leather-bound calendar to a page marked by a blue ribbon. “We start picking our jury at eight on Friday morning.” She glanced at Seeley. “I hope the hour doesn't come as a surprise to you.”
Seeley said, “We have no problem with that, Judge.” Palmieri had already told him about Farnsworth's early hours.
“You understand that here in the Northern District, each side gets three peremptory challenges and unlimited challenges for cause, but the judge conducts voir dire. If you think I've missed any important questions, you'll have the opportunity to let me know.” She had been looking at Seeley, but now took everyone in. “I'm sure Mr. Thorpe knows all this. You can take as much time making challenges as you want, but I've never recessed for lunch before a jury got picked, so you will want to reflect on whether your objections are sufficiently important to keep the jurors from their lunch.”