Antitrust and Unfair Competition Law

Competition: Spring 2016, Vol 25, No. 1


With Judges William H. Orrick III, Christina A. Snyder, and Jon S. Tigar Moderated by Niall E. Lynch1

Trying an antitrust or complex business case in federal court presents a significant challenge to any lawyer. Antitrust cases present unique and complex legal issues that must be conveyed in an understandable way to a jury. In addition, marshaling the facts in a clear and persuasive manner and effectively using expert witnesses creates additional challenges for trial counsel. Finally, on top of the complex legal and factual issues, trial counsel must ensure that their case does not run afoul of the District Court Judge’s expectations of how the lawyers should conduct themselves in their courtroom. Understanding the perspective of the trial judge can make the presentation of your case run more smoothly and effectively.

Thus, on October 29, 2015, Judges William H. Orrick III,2 Christina A. Snyder,3 and Jon S. Tigar4 spoke at the 25th Annual Golden State Antitrust and Unfair Competition Law Institute on the topic of managing antitrust and complex business trials. They discussed their real world experience in managing complex cases, and provided invaluable tips to litigants on how to effectively try cases in their courtrooms.

Moderator: Let’s start with having each of the judges provide us with a brief background on their prior experience in antitrust and/or complex business trials. As well as any general comments and observations on presiding over complex business trials, including practice tips for lawyers trying complex cases in your courtroom.

JUDGE SNYDER: I have presided over numerous antitrust cases during the course of my career. However, I don’t recall one that has gone to trial. Unfortunately, they often result in summary judgment one way or the other, and that seems to be my experience. In fact, in preparing for this panel, it turned out that the youngest among us, Judge Orrick, is the only one that’s tried an antitrust case at this point in time. So it is a matter of, I guess, being in the right place at the right time.

That said, I have certainly tried many complex cases and am familiar with case management and issues of that nature. I think that one of the important things that any practitioner can do with a complex case is really to sit down and think, "How can I make this simple?"

I heard Judge Illston on an earlier panel today talk about restitution and that it is very important, if you are going to have a claim for restitution, you know exactly what that claim is. And that is often the problem in many complex cases, be they antitrust cases or other cases of that nature. So I think the best advice I can give today, and I will probably have a lot more to say, but the best thing I can say, know your case, know your evidence, know who your witnesses will be and come into court on your first occasion with as clear a concept of where you’re going with the case.

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JUDGE ORRICK: I did have the good fortune of trying a Clayton Act Section 7 case as my first trial within a month of the time that I got on the bench. One of my colleagues was kind enough to give me a case that was scheduled for a five-week bench trial.

What I knew about antitrust was not very much, actually very little, except that I’m probably the only person in the room at whose house used to be, for a short period of time, a life-size cutout of Senator Sherman—because my dad was an antitrust lawyer. So that’s all I knew before I got the case.

I know more now, and I have had a couple of patent trials in addition to that. I am happy to talk about the Bazaarvoice trial. There is somebody in the room who actually knows a lot more about that trial than I do, a fabulous lawyer, Peter Huston, who represented the government, but I’ll have a few things to say about it too.

My tips for people here are, and it’s surprising that I need to say this, but develop a theme and tell a story when you’re trying a case. Remember that throughout the case, and particularly during trial, you should be thinking that you’re on stage a quarter of a mile before you get to court. And if you’re not treating other people really well, particularly my courtroom deputy, you can assume that I am going to know that, and you should also assume that the jury’s going to pick up on the kind of person that you are. So being a good person actually matters a huge amount.

And then my final tip for you is that you need to be the master of everything you do, starting with being honest about your case, but also knowing how the technology works and being ready with deposition excerpts when you’re cross-examining people. If you can’t do that, you’re going to be marked down by the jury or by the judge. Those are my tips.

JUDGE TIGAR: Although I have substantial trial experience, I haven’t tried an antitrust case. I was on the state court for 11 years before I joined the federal bench, and I was able to try some cases when I was at the Keker firm.

Even so, I have to say, sitting next to Judges Snyder and Orrick and with this audience, I feel like I am talking about country music while I am sitting with Johnny Cash. I was able to try some complex cases while I was a lawyer at Keker. On the state court I did real estate fraud cases, a bunch of breach of contract and multi-defendant cases.

I think Judge Snyder and Orrick hit upon the same thing that I came here to discuss: simplify, simplify, simplify. The complex case you are trying is more similar to other kinds of cases than it is different. It is just more complicated. But the need to simplify and clarify is the same. I think what happens in the big cases is lawyers will get lost in the weeds. There are a few things they came to tell the court and came to tell the jury, and they have to stay focused on those things.

If you—for example, let’s say you represent a defendant, and your client’s conduct wasn’t good but the plaintiff didn’t suffer any injury. Well, if you are making 25 arguments and 24 of them are weak and the 25th one is there was no injury, you are diluting the point. It doesn’t mean you concede every one of your opponent’s arguments, it just means focus on the case.

I also think Judge Orrick got it right when he said, try to be a good person, and if you can’t do that, pretend like you’re a good person. You have to play the long game. Complex litigation trials tend to be longer than other trials, so they become an opportunity for people to show their true form—whether or not that’s a good thing. Don’t get excited about nick-el-and-dime controversies. Be the calmest, most efficient person in the court all the time, and you will start to become the person people gravitate towards—not just the judge, who will help you with rulings, but also the jury. You want the court to look forward to hearing from you, and I can’t tell you how much of an advantage that will give you in the margin.

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I have to say, in these big cases you have to make it easy for the jury. They want to do a good job for you. They have a lot of enthusiasm. They like you. You should read the letters I get from them afterwards. They are so invested in doing a good job. If you make it hard for them, they can’t do a good job. And if you make it hard for them and your opponent makes it easy, then you are shooting yourself in the foot.

Things like juror notebooks with copies of the jury instructions and the most important documents, pictures of witnesses with their names for the notebooks so they can remember who the witnesses are, stipulating to a mid-case argument when the case is so long and the jury is going to forget the testimony. Things like that, I think, can be really helpful.

Moderator: Before we get to the actual trial, let’s discuss framing the issues for the trial, in particular, motions in limine and pretrial briefs. For this I’ll start with Judge Orrick. What kinds of issues are effectively raised in motions in limine, which ones aren’t, and specifically with regard to Daubert motions, which are quite popular for antitrust lawyers—one lawyer in an earlier panel said something about letting the dogs of Daubert out before trial. Tell us how you look at motions in limine in general and framing what will actually get before the jury or, in a bench trial, be presented before the judge.

JUDGE ORRICK: I think that dog should stay in the kennel a fair amount more than it does.

I have a rule of limiting motions in limine to 25 pages, as many as people want to bring in 25 pages. But what that rule should do, and it doesn’t always, is limit the number of motions they bring.

I have a trial coming up on Monday where in those 25 pages, times two for two parties, there are, I think, 35 motions in limine. That’s a little too much. Your goal should be to focus me on an issue that’s prejudicial to your case or one that you want me to have a strong heads-up on so that when the issue arises, I will have thought about it. Because I am less experienced than my distinguished colleagues, I don’t mind seeing the 35 motions in limine that I am going to rule on Monday because they tell me who these lawyers are and lets me think about a number of different issues I may not have considered. But I’d be selective, more selective than they are when raising them.

I think that’s what I look for with respect to motions in limine. A lot of them are just sort of a waste of time, in my experience.

With respect to Daubert, particularly for the people in this room, you usually hire people who have a lot of experience, and I am usually not going to cut somebody out unless the theory is really out there. And the way that I’ll know that the theory is out there is if I have considered the issue before during the course of the case, if it’s been raised somehow in motions for summary judgment or in some way that I can wrap my head around it.

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But if somebody has a lot of expertise on some issue, I am going to want to hear from them.

JUDGE SNYDER: I agree on the Daubert situation. I think Daubert motions are grossly overused and people do bring them when you have a perfectly fine expert economist who may be a professor at some school and he may have a theory and it may not have been tested in the fashion that the defense lawyer would like, but the fact of the matter is it is really a matter for cross-examination. I rarely exclude experts unless they really have nothing to say that can be helpful to the jury.

As far as motions in limine, the only thing I would say is I typically let lawyers file a reasonable number. I don’t have a set number, but my rule is five pages on a motion, five pages on the response, no replies and we settle things at the pretrial conference as best we can. I don’t like to have these motions go into a trial.

I will tell you that every judge just becomes very unhappy when presented with a motion in limine that is really a disguised motion for summary judgment, which often happens. And you just have to say, "The time for that motion has passed. We are not going back there."

And I think that kind of summarizes my philosophy.

JUDGE TIGAR: In the interest of time, let me just say that I strongly agree with Judge Snyder’s summary judgment point and with the Daubert point that both judges made. I would only add that occasionally the court gets a motion that says, "We want you to exclude any document that wasn’t produced in discovery." But the motion is not directed at any particular document or exhibit. A motion like that wastes the court’s time, because the court doesn’t know what document you’re worried about, or even whether you asked for it. It’s just sort of a general request that courts enforce abstract discovery rules. If someone springs something on you at trial that they didn’t produce but should have, fine, we’ll deal with it at trial. But a motion in limine like that is silly.

Or "Can you stop them from talking about some issue?" Well, is there any evidence in the case that relates to that issue? Why don’t you tell me what the evidence is and ask me to exclude that evidence. That’s how motions work. Motions in limine are designed primarily to determine questions about whether evidence will be admitted or not or whether a certain rule of law will govern versus some other rule of law in the case. That’s it, that’s what they are good for.

If you get too far afield from those, usually you are going to try the court’s patience. This applies to our next topic. If you are a senior person in the case, you have to exercise a really firm hand on the number and length and quality and utility of the motions in limine. You can’t just issue an instruction to the most junior lawyer in the office and say, "Gin up as many summary objections as you can," or, "How many motions in limine can you come up with." Most of those motions are going to be losers. And not only are you going to lose all the losers, your credibility with the court is shot, and we haven’t even picked a jury yet.

And it works the other way too. It’s not all stick and no carrot. If you file a reasonable number of motions and objections to evidence and many of them are solid, that really enhances your credibility with the court.

Moderator: Keeping on the theme of evidentiary objections, during trial how do you like to deal with evidentiary issues? Sidebars, rule in front of the jury, beginning of the day? Do you like them briefed, do you not, what works well, what doesn’t, what is your general attitude towards evidentiary objections, Judge Snyder?

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JUDGE SNYDER: Generally I dislike sidebars, and I tell the attorneys that we are going to resolve the major issues either before we commence taking evidence, over the noon hour, or at the end of the day. I try to know—maybe I have sidebars one or two times during a trial when something comes up that’s something unexpected. I think they are a waste of the jury’s time.

And I think one of my important tasks is making sure that we really keep the case moving for the jury because we are there asking people to devote a lot of time, take a lot of time out of their lives, and I think we have to be very respectful of them. And sidebars and all these other private discussions in their presence where they feel excluded from the conversation do no good.

JUDGE TIGAR: Same here. Same on sidebars, same on the opportunity cost of my time, and particularly the cost of the jury’s time.

I would add also, I am not aware—I would love to see an objection that takes more than five words, because I am not aware of one. So if you are saying more than five words when you object, you are coaching the witness or making a speech in front of the jury. We don’t do that. The way it’s supposed to go, for example, is "objection; hearsay." Fine. I look at the other side so they can tell me if there’s a hearsay exception. Unless I think the objection has no merit, in which case I overrule it. I don’t need to hear from the other side. Five words or less, cite the evidence code. I’ll either make the right call on the law, or I won’t. But we’re not going to have a lot of argument.

We are not going to have a sidebar. We are not. You may feel aggrieved by something I did, but this is only an evidentiary ruling in the middle of a trial. That’s what’s happening. So it gets the amount of time appropriate to that event. It is not that it’s not important. Everything’s important. Some things are one-minute issues, some things are one-hour issues.

This is one evidentiary ruling in the middle of a trial. If you feel the court erred, you’ll have a chance to make a record at the beginning of the day or at lunchtime or at the end of the day.

JUDGE ORRICK: I also agree with that. In my trials I start at 8:00, and at 7:30 the lawyers come in and we deal with all the big issues that are coming up. And aside from that, I want the five-word objections that Judge Tigar was just describing. That’s all we need.

Moderator: We have talked about juries and the need to be clear to juries. Let’s now talk about jury selection. I think a lot of discussion and speculation among lawyers goes into what makes a good juror in an antitrust case because different crosscurrents can come into play in an antitrust case about which jurors might be sympathetic to your side and which ones will not. Therefore, do you allow jury questionnaires in complex cases, do you find them helpful, do you allow lawyers to ask questions in terms of voir dire, what’s been effective, what’s your general attitude towards jury and jury selections?

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JUDGE TIGAR: I am a big believer that lawyers should be able to pick a jury they have confidence in. So I allow voir dire in most cases. In complex cases I expect a questionnaire. If it is a good questionnaire, I may ask no questions myself, and I’ll let the lawyers conduct the questioning.

In general, in any trial I am prepared to ask the questions that are really hot-button questions for the jurors, so lawyers are not at risk for having the jurors dislike them from the beginning. I will let the air out of the tire.

For example, in an employment discrimination case, it is important to know the experience these prospective jurors may have had, sexual harassment or difficulties in the workplace. Those are difficult questions. Sometimes the lawyers will say, "Can you take these questions?" I am happy to do that.

Putting that to one side, with a good questionnaire I might not need to ask a lot of questions.

I do set time limits. It is not unlimited.

I had one case where I felt jury selection was so important I put no time limits on it. It is possible. I don’t think any of the cases we are discussing today fall into that category.

Having said that, there are limits on the questions lawyers can ask. You know what those limits are, questions that suggest the jury outcome of the case would be, asking jurors to promise to vote a certain way if certain facts come in, that kind of thing, those are off limits.

I guess the main thing is I really want—I want the lawyers to have a lot of confidence in the jury. I try to do whatever I can to send that message to them.

JUDGE SNYDER: I do pretty much the same. The one thing I probably do is limit voir dire and try to ask the questions myself.

That said, when there are very sensitive issues, I will invite the lawyers and any particular juror over to sidebar, because I think it is important that the jury understands the answers have to be truthful. And although the answers may be embarrassing, we will do everything to shield them from having to reveal anything embarrassing to a bunch of strangers in the room, but it is very important they be candid.

There are times it makes very, very good sense to do that. I can recall an occasion where I had a woman in the jury who said, "I have to come over and tell you something." So she came over to the side. "I am a convicted felon. I shouldn’t be on this jury." We said, "Maybe you should go."

JUDGE ORRICK: I generally agree, particularly with Judge Snyder. I do more of the voir dire myself. I say that I limit each side to 15 minutes, which so far has been ample, it turns out. But in cases where issues are getting fleshed out by the lawyers after my voir dire, I will let them go until the questions turn into argument, and then I would stop them.

JUDGE TIGAR: I need to make one clarification. In a noncomplex case, I ask the questions. So I ask the questions first and give the lawyers their own time after that.

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Moderator: Next topic is trial management. Complex cases can be quit lengthy. There is the classic example of the 13-year IBM antitrust case that was filed in 1969 and resolved in 1982. Since that case, there has been substantial efforts by courts to try to make complex cases shorter and more manageable. Judge Snyder, focusing on time limits for trials, is that something that you have adopted or considered in complex cases? Do you impose time limits for opening, examination of witnesses or closing, how do you set the time limits, when do you give relief from the time limits that have been set, and what other tools do you use to focus the trial and move it along?

JUDGE SNYDER: I do use time limits in civil cases, not in every case, but where I sense that the parties are going to go on and on and on. I will sit them down at the pretrial conference and say, "Look, this case should require 18 hours at trial, and you can go and discuss it, come back and tell me if you think that’s unreasonable."

And typically what I would do, I do not include opening statements as part of that, it is just the time that you get testimony. I don’t include closing argument.

I have never had a case where people have not completed the case within the time limits, although I am prepared to give people extra time if I think they have had a particularly difficult witness to cross-examine or there’s some real reason to extend the time limits. But thus far the time limits that we have agreed upon, generally, the time’s never been used and the parties get to the jury, and I think the jury appreciates it.

JUDGE ORRICK: I love time limits. I think they are great, and I impose them regularly and with impunity. I think the Bazaarvoice case is a good example of that.

My colleague who transferred the case had scheduled five weeks for a bench trial, and with the extraordinary experience that I described at the beginning of this panel, at the first conference with the lawyers, I told them that they would each finish their case in 27 hours. So I cut the trial basically in half, which was sufficient, I think, to do it.

Lawyers—being focused on what kind of an examination, what kind of points you are making, how every witness develops a theme of your case, is critically important. In my antitrust trial, the government was particularly good, as was Wilson Sonsini on the other side. Every time somebody stood up, I knew I had to listen because they had something important to say, but they weren’t going to say too much.

I think time limits help focus that theme, and I use them happily.

JUDGE TIGAR: I set time limits in every civil case. I set them separately for witness examination, and as I think both judges, I know Judge Snyder said, for opening statement and closing argument.

The beauty of time limits is I am out of the game of worrying about, "is this question irrelevant?," "is this examination taking too much time?" I can stay out of it. Because you just get one block of time if you are examining the witness, whether it’s direct or cross, your clock is running. You decide what’s important and how much time each issue should take.

You want to take all the time in the world to repeat yourself during the cross-examination of this witness, that’s fine. It’s possible that you’re boring the jury, and you are certainly taking away time that might be used with another witness. But I don’t need to get involved with that. The system is self-policing.

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I would say to the people in the room if you want to win a case, be the person who is prepared to try that case in a reasonable amount of time and start preparing that trial from the beginning and show up ready to try that case. Don’t be scared of time limits. Time limits are your friend.

I used to send out letters to jurors when I was in the State Court, just a practice that I had. A "how did you like it," customer service kind of thing. I did that for several years.

The only negative comment I regularly got on the letters—and by the way, jurors love serving on juries. The one regular comment I got, "Why do they repeat the same questions over and over again? Why are they doing that?"

Time limits force you to really become the best lawyer. If you walk into trial and you are ready to try your case in a reasonable time and your opponent is not, you have an advantage. I love time limits, and I think juries love them, too.

Moderator: There’s been a lot of discussion about making cases simple for juries. I think a lot of lawyers translate that into having graphics. I think you would be surprised how much time is spent on graphics. I would like to start with Judge Orrick, and hear your views on graphics. Do you allow them in opening, during questioning of fact witnesses, when do you require them to be disclosed to the other side, and what graphics do you think have been most effective and what should be avoided?

JUDGE ORRICK: I am a fan of certain kinds of graphics, simple graphics, graphics that show chronology with events in a readable format. Those things I always enjoy, just helps me figure out what the case is.

I do allow graphics in openings. I require that they be exchanged on the Wednesday before the trial starts on the Monday, and if there’s a problem with them, we have a conference on Friday, phone conference on Friday before.

If graphics are going to be used with witnesses during the trial, I require that they be disclosed by the evening before so that if there are any problems with what I am going to see, they can be raised at the 7:30 conference. But I do think graphics are great, although a lot of people try to do too much with them.

JUDGE SNYDER: I think graphics can be very helpful. I think there are times—for those of you who appear in the Central District, I am in the Spring Street courthouse, which is not technologically friendly, to say the very least. So it is sometimes hard for people to come in and do the same bells-and-whistles graphics that one would do in another courtroom. That said, I think they can be helpful. I think they can be overdone, also. I think it really depends upon the case.

I had the experience of trying a fairly high profile copyright case a few weeks ago which involved copyright infringement related to raps and whether, in fact, their sampling infringed on the work of an Egyptian composer. We had Egyptian law. And while the case is pending, I won’t get into the details we had more musical equipment that I can begin to discuss, but it was necessary in that case to demonstrate to the jury the various positions of the experts and the parties.

JUDGE TIGAR: I agree with much of what’s already said. Judges and juries have different learning styles, which means if you present information in two ways, you are maximizing the chances that the information will be received and understood by the person you are talking to. And the flip side of that is if you don’t do that, you are minimizing the chances that the information will be understood. I think graphics and the other kinds of things that Judge Snyder was talking about have an important place in trial.

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I would add, first, we have the discretion as trial judges to admit demonstrative exhibits. That’s the difference between your foam board staying in the courtroom when the jury goes back to deliberate and it going back with them into the jury room. The way to convince the court to do that is to create a nonargumentative graphic that when it comes time to have it admitted is not going to hobble you in terms of convincing the court that the exhibit has value to the jury.

The argumentative graphic might allow you to have some fun with a particular witness, but that’s really going to be its only day in the sun. If you do something a little more even-handed, you’ll have the opportunity to have it last throughout the trial.

The other thing I will say is that federal courts have great rules on summary evidence. In complex cases you have so much underlying data and documents, not only is summary evidence in paper form or testimony helpful, graphics are a great way of getting that information across to a jury.

Moderator: One innovation we have seen some judges adopt, although it is not common, is allowing direct addresses by the lawyers to the jury during the course of trial, sort of an interim closing or explanatory period where the lawyers can speak directly to the jury. Is this something you have ever tried, Judge Snyder, or anything similar?

JUDGE SNYDER: Not really.

JUDGE TIGAR: I haven’t done it, but I think it’s the new frontier. I also think honestly, in most cases, even complex cases, under time limits, the trial’s not going to go on long enough where this is really going to be an issue. But you might have a case where you decide that you’re disadvantaged because you had a great witness that testified four weeks ago and the testimony has become diluted by the passage of time. And for the jury to do its best job, you’d like them to keep that witness’s testimony in mind. I haven’t done it because no one’s ever asked me for it. I think in a case like that, if somebody asked me, I’d probably say okay.

JUDGE ORRICK: I am looking at Judge Illston because I had to do that—or was able to do it in the trial before her eight or nine years ago. I don’t know how she found it. I thought it was okay. I haven’t done it in any of my cases, but I am always willing.

I am always willing to do something that the lawyers think is a smart idea because you know your case better than I do. And if you have a thought about how something can be presented in a clearer, better way, I am always going to be interested in it. It doesn’t mean that I will always agree with it, but you should make the pitch if it is something that you want to do.

Moderator: Let’s now talk about witnesses and cross-examination, redirect, and recross. How much leeway do you give during cross and redirect, do you allow anything beyond the redirect, when do you allow video deposition excerpts for impeachment, do you find that effective, do you allow jurors to ask questions of witnesses and under what circumstances, and do you, as a judge, ask witnesses questions?

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JUDGE TIGAR: Let me take those out of order. I impose time limits on all my civil cases, so I am a little less concerned about how long things take. I don’t have an arbitrary limit on the amount of redirect or cross.

For me there’s direct examination, cross-examination. I think people have some leeway on cross-examination because witness credibility is a little hard to define with any precision.

So now I have had a direct and a cross, now I know what the scope of everybody’s examination is going to be, and I expect that that’s going to shrink. If you’re asking questions that are not within the ambit of what was just asked, then I’m probably going to sustain an objection. You exceeded the scope. And that just takes care of itself. I haven’t had a lot of problem with repetitive back-and-forth because the lawyers are usually able to tell when the jury is getting bored.

In a bench trial, I ask a lot of questions because I am the trier of fact. In a jury trial, I only ask questions if I didn’t hear what the witness said because I figure at least one juror probably didn’t hear the witness either, because I am sitting pretty close to the witness. I’ll also ask a follow-up question if I literally didn’t understand what the witness said. That doesn’t happen much, but it does happen, and in that instance I think my job requires me on behalf of the jury to ask the question and, also, I need to understand the witnesses, too. But otherwise I think in a jury trial the lawyers should be allowed to ask their questions and not have the judge weighing in.

I let my jurors ask questions. Not directly. They write them down on a piece of paper, and I review them with the lawyers. And then assuming there’s no objection or any objection has been overruled, I will ask the jury’s question at a break between the lawyers’ questioning.

And then I guess the last thing, you asked about video deposition excerpts. I was in a big, big, big complex trial in Los Angeles as a lawyer, and I was able to cross-examine a witness very effectively that way. It was great. Have you ever done that—raise your hand—and it worked out? It’s great. You can really have the jury eating out of the palm of your hand because you have the witness sitting there and they are saying something and then there’s the TV of them saying the opposite thing. That’s like lawyer candy.

Having done it to good effect, I have never had anybody object to it, but if somebody said, "You know, I think that may put too much emphasis on cross," I’d at least have a hearing to think about it, because I know from firsthand experience it is effective.

JUDGE ORRICK: So, Peter Huston, where are you? I love having video deposition excerpts in cross. It can be just devastating.

My favorite example appeared in the Bazaarvoice trial, where the defendants put on one of these masters of the universe from Silicon Valley who was really very smooth and smart. He seemed like quite a good witness on direct. And the government’s lawyer got up on cross and said, "Mr. So-and-so, are you taking your testimony seriously?"

I looked over and thought, what, is this the first false note that the government had made in the case? What is he talking about? Then they ran the video from the deposition. And when this witness was being sworn in, he looked over directly at the camera and winked, and it just—the rest of the cross-examination, it was a beautiful thing. It was just a heck of a setup.

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So I think video excerpts are fabulous. Cross-examination in general is something that I like, I give a lot of latitude in cross-examination. And I probably do—there’s probably more redirect and recrosses in my court than anybody else’s because I don’t know enough yet. Testimony is great. So I allow a lot of latitude in questioning because the lawyers will be punished if they’re wasting time since we do have time limits.

I have not yet had jurors ask questions. I never did it when I was in practice or had experience with it, and so far nobody has asked for it. I am open to it.

JUDGE SNYDER: I agree with what both of them said. I do permit jurors to ask questions in writing and discuss the questions with the attorneys to see if they are questions that should be asked to clarify things. They also can tell lawyers sometimes they are veering off-course because the questions really are not particularly good questions.

As far as videos, I think I agree with Judge Orrick, and I think if someone made a motion to preclude the use of videos in cross-examination, I would not have a hearing, I would just deny that out of hand.

JUDGE TIGAR: I might adopt that ruling, and I don’t need to have a hearing.

Moderator: The next topic is documents. Antitrust cases are notoriously document heavy. The management of the documents is always a big issue in these cases. What do you allow in terms of sharing written documents with the jurors, showing excerpts on the screen, notebooks, binders, key documents, what has been the most or least effective ways of handling written documents in cases where the lawyers have put in hundreds of pages of documents into the record, and I don’t know if anyone ever reads them, but what’s your thoughts on documents and the use of documents?

JUDGE ORRICK: I think you just answered the question. If you care about an exhibit, you have to show it to the jury. You have to focus them on the thing that you care about. And if you’re just wholesale putting documents in, there may be a reason for you to do it for your record, but you are not persuading anybody, so you need to show them on a screen.

I personally am agnostic to giving many documents to the jurors and a notebook. If everybody agrees, I will go ahead and do it if you would like to do it. But the more paper you give the jury, the less they’ll focus on you—when I am talking, I want you to focus on me or I want you to focus on the screen if I’m showing you something that’s short.

But if I am listening to you and have a notebook with a bunch of documents and my mind starts to wander, I start looking at it and I am not paying attention to you. So I would be very cautious. I always warn lawyers about this. Sometimes they listen, sometimes they don’t. I always warn lawyers about giving the jurors the opportunity to do other stuff than paying attention to the lawyers.

JUDGE SNYDER: I use the video screen, obviously, to focus documents. I think it is worth mentioning, although I don’t have it because we don’t have the resources, there are many practitioners who are working on jury trials who advocate having iPads for the jurors so they can have the document on their own iPad and read it as they go along.

I think we are going to see more of that because it is a way to let a juror who doesn’t see as well see something up close. You can expand it on the screen if you want to do something. Many of the younger judges in my court seem to think that’s the way to go.

[Page 103]

JUDGE TIGAR: I have a courtroom at the moment that doesn’t even have a home movie screen. So in terms of the technology for documents, the lawyers have to bring that in. I think that as an institution, we are a little bit—we are not on the edge of how people are receiving information. There’s so much research now about divided attention skills or disabilities, depending on how you look at it, that the younger part of our jury audience now has because that’s how you are processing information.

I don’t think I have any tips about how you give information to jurors in a way that’s consistent with the way they are absorbing information. I think that’s a subject I need to learn more about. I’m not a teacher on that topic.

With regard to Judge Orrick’s comment about notebooks, the only situation I have used notebooks is patent trials, and there aren’t a lot of things in the notebooks, but there’s some anchors in there, and a lot of time it has been helpful.

Moderator: The next topic I would like to cover is the use of guilty pleas. Particularly in the Northern District of California, there are many antitrust cases involving criminal price-fixing investigations that lead to guilty pleas by the company or senior executives and those executives testify in criminal and/or civil trials. What’s your general approach with the use of guilty pleas and how they are brought into evidence?

JUDGE SNYDER: This is a subject that can probably take the entire hour, but let me try to be brief. Obviously a guilty plea can be admitted against a party who has entered the guilty plea. The more interesting question is: What can you do with that guilty plea with regard to the alleged co-conspirators, what can you do with the guilty plea regarding other parties and so forth?

For example, if an employee of a company enters a guilty plea, it is most probably admissible against the corporation itself, assuming he performed whatever he did illegally in the course of his employment.

Likewise, you have the question of what do you do when you have a guilty plea by one defendant and there are alleged co-conspirators who have not entered guilty pleas? Does that guilty plea come in against them? I think perhaps it does as an admission against interest under Rule 804(b)(3), particularly if the witness is unavailable.

And there are, you know, many arguments either way on this subject, but I think that that is a question to be considered in the process of trying the case.

There are other situations where you have a guilty plea, let’s say, by several codefendants with regard to one product and the plaintiff wants to use the guilty plea to show that they most likely conspired to fix prices as to another product, and that creates another set of problems.

The cases are somewhat split, but I think on balance, I think more courts are saying if these three people met someplace and agreed to fix the price of Product A and they were together at the time of Product B, it is at least some evidence that they conspired regarding Product B.

I think the most humorous example, there was a case many years ago that my antitrust-lawyer husband was involved in. He was involved in a case relating to a conspiracy to fix the price of vitamins. And all of the price-fixers met in the Black Forest on a particular day, they all went to Germany, and, of course, the question there is if three of the four had entered guilty pleas and the fourth one just happened to be in the same hotel in the Black Forest and that person didn’t fix prices also, was it a reasonable inference that Defendant Number Four was part of the conspiracy? And I submit that the answer is yes in the minds of both plaintiff and defense lawyers, but that’s the rare case.

[Page 104]

Usually you have a situation where nothing is really clear. You have parallel conduct, but not necessarily concerted action. So it is a very interesting area. I could go on for hours, but we don’t have hours. So I just raise those issues.

They have been seen by many of the judges in this district, but you are going to be presented with them increasingly because there are so many guilty pleas that precede the filing of civil litigation that one has to figure out what they are admissible for, what the circumstances are. And I think it will be an increasingly interesting issue.

JUDGE TIGAR: I think on just this one issue I can speak for [Judge Orrick]. We have not had this come up, so we are just going to call [Judge Snyder] when it happens.

JUDGE ORRICK: I do have something wise to tell you all that will give you great insight into my judicial temperament. I have a question that I ask when I get an issue like this. I think: "What would Judge Illston do?" And then I usually go and ask her.

Moderator: The next topic relates to the use of deposition transcripts. How do you manage the endless objections to deposition testimony, what do you find the most effective way to present deposition testimony, video versus Q and A, stand in for the witness or just reading in by the lawyer, and do you permit narrative summary background testimony, and if you do, what have you found effective?

JUDGE TIGAR: Let me do objections last. Video is clear, that’s what the jurors want, that’s what you want, that’s what I want. Video, if you have it, is always the best way of presenting deposition testimony. I have gone both ways on whether I will require all the video to be shown at one time. There are good arguments to be made both ways.

Defendants always say, "Why shouldn’t I be able to put in the good parts of my case," and the plaintiff says, "Why do I have to let their junky stuff that I hate in my case?" Really that’s case-specific. Video, in terms of media, video is the best.

If you don’t have the video and you want to get the testimony and you don’t have the witness, I like to have somebody pretend to be the witness on the stand. I don’t like to have some lawyer standing there reading the transcript. That is super boring. That’s not a very judicial way of putting it, I know. But it is super boring.

It is boring even for the person reading it, because you can hear in their voice they wish they were somewhere else. So just imagine how the jury feels.

If you have someone playing the witness, sometimes the other side will object and say, "The witness is going to play games, they are going to put someone in the witness stand and do something that’s unfair." You know what, the jury is smart. So if they do that, the jury will know. And the other way of presenting testimony is so boring we can’t do it.

No one has asked me to do a narrative summary of trial testimony. I might allow that by stipulation. Otherwise someone summarizing ad hoc, I don’t think I’d allow that. Photos, anything the lawyers agree on, I would probably allow, including summary of background.

[Page 105]

Let me talk about objections. This goes back to what I said earlier, putting the junior associate in the room and locking the door and asking them to gin something up. I require, as almost all my colleagues do, process of cross-designations, they exchange, then meet and confer and then the lawyers file objections. Most the time the lawyers are reasonable in the objections they make.

Whether they’re reasonable or not, I’m going to read all of them myself. I don’t delegate that work to a law clerk. And usually I’m doing that work on the weekend before trial.

So if I had to spend an entire day going through unreasonable objections on the weekend before trial, we’ll talk about that on Monday morning. For example, the effect of having to read the word "relevant" 412 times. For one thing, it forced me to learn a lot about the case. I have an electronic copy of the deposition, and because of all the objections, I just read it. I read the parts that have been objected to, but I end up reading a lot of the material around the objections too. And most relevance objections are overruled.

So the advantage for me is I have to do the objection rulings, but I also want to learn your case so when we do the trial, I am coming at it from a place of knowledge. So I am able to kill two birds with one stone. And on Monday I come in and have a table that sets out my rulings on each of my objections. You are going to get a lot of credit if you’re reasonable on this.

JUDGE ORRICK: I generally have the same response as Judge Tigar.

But it brings something up in another context that I said at the beginning, which is we read these depositions and we see these stupid objections that people make to try to obstruct what’s going on, and it gives us context that you really don’t want to have.

It is like my view of trials: some of what matters comes out of a witness’s mouth, but a lot of what matters is everything else, the way that people interact, the way that you interact with your witness or my courtroom deputy or how polite people are. You get to know a lot from everything, not just testimony and documents.

Usually when you’re reading deposition transcripts, it’s not very flattering. So I would be paying attention to how you behave all the way through your case.

JUDGE SNYDER: I think, first of all, under our local rules, if you plan to read a deposition in the course of the trial, you have to submit the objections in advance in the transcripts. So I obviously rule on those objections before we ever get into the courtroom.

I agree that the video depositions are far more interesting, but you have to give counsel enough notice so they know what testimony you are going to exclude and what testimony you aren’t going to exclude. You can’t really do it on the fly. I try to do it the day before so they have a chance to get their technical stuff in order so that they are not disclosing testimony that I have excluded.

Same thing with written, reading deposition transcripts, I agree with Judge Tigar, nothing is more boring than one lawyer reading the whole thing, so I really encourage there to be someone posing as the attorney and someone posing as the witness sitting in the witness box so that the jury can understand the exchange.

[Page 106]

And, finally, as far as letting the opposite side put on its deposition testimony in the course of the defense case, I often do that because under the rule of completeness it seems appropriate to do it then, and it is probably more useful to the jury. I decide all this based on what I think is going to help the jury.

Moderator: The next topic is expert testimony. Expert testimony is a crucial aspect of any antitrust case. I would like to get your thoughts on the use of expert witnesses. How closely do you hold experts to the reports on direct, to what extent can experts go beyond the report on cross, redirect, do you permit the use of bullet summaries to be shown while the experts are testifying, are those admitted into evidence, and do you require foundation for them and just any other general thoughts on expert testimony?

JUDGE ORRICK: My specific expert thought is if you’re able to hire Carl Shapiro as your expert, he’s over at Berkeley, he used to work in the Antitrust Division, then you’ve done a really smart thing. He was the expert for the government in the Bazaarvoice. And while the defendant had a fine expert, Shapiro was really quite something and helped walk me in the direction that the government wanted me to go.

I hold experts very closely to their reports on direct. I don’t let them go beyond in cross unless the cross-examiner opens the door in some fashion. I do permit bullet summaries. They are experts. I hope they know what they are going to be talking about, and the bullet summaries are helpful, again, as a way of explaining the testimony and keeping the expert corralled. I think they are just useful. And I’d only strike them if there was no foundation for them, and that’s an issue that would get raised by objection.

JUDGE TIGAR: I agree with that. All I would add is that’s one of the hardest things we do, this part about keeping experts to their report, because you all know your case. We have a difficult time doing that in real time. Maybe [Judge Snyder] and [Judge Orrick] don’t. I do.

Judges make decisions and juries make decisions based on imperfect data. If you wanted to know why your credibility is so important, that’s why, because we don’t have all the information. We would love to be able to trust you because if we do trust you, we don’t have to audit. Versus if we don’t trust you, we have to audit and we don’t have enough time, and so we feel acutely that you are making us do something that we don’t feel we should be doing.

This is one of those areas where it is very difficult for a judge in the middle of an examination of an expert to opine with certainty whether someone is or is not faithful to her 67-page report. Your demonstrated credibility leading up to that is going to be very useful to you.

Conversely, as judges, we have to be sharper with people in an area like that, where it is harder for us to be all the way there on the information and you broke the rules. I think where it’s been shown that an expert has not been faithful to the report, I am going to try to do as much as I can to try to make sure I have made the playing field level.

JUDGE SNYDER: I agree with everything that’s been said. The one thing I would add is that when you retain and work with your expert, you really have to be careful that the expert is not opining as to ultimate facts and invading the province of the jury. I am constantly amazed with the expert reports I see that do that, and that’s a place where I draw the line.

[Page 107]

Moderator: We have a couple more issues on our outline, but we are running low on time, and I do want to have an opportunity for two or three questions from the audience.

AUDIENCE MEMBER: Do you give any special treatment to young lawyers when they face you at trial?

JUDGE SNYDER: I try to treat young lawyers like any other lawyer in the courtroom. And I think it is a tremendous thing when law firms let their younger lawyers get that sort of trial experience.

I think most judges are thrilled when young lawyers come into the program, assuming they are well-prepared, and they usually are, because the ones that want to step up to the line early in their career are budding superstars who really want to be good in court and learn. I don’t know if it is special treatment, but we are always happy.

JUDGE TIGAR: I will give you my most clearly undivided attention. I will let you talk longer than I otherwise would. I am trying to do everything in my power, without saying it explicitly to the firm that allowed you to come to the microphone, that they made a good choice.

I had been only months out of my own clerkship for a federal judge and working at Morrison & Foerster, and I got pulled into this big commercial arbitration. I got to cross-examine witnesses, and I will never forget what it felt like as a young lawyer to have that opportunity. I agree with [Judge Snyder], we don’t see enough young lawyers. I can’t do anything beyond what I just said, but I do everything in my power to make that young lawyer know how glad I am she’s at the microphone.

JUDGE ORRICK: I think not only that, but we always appreciate having the person that’s done the work make the argument; just sayin’.

AUDIENCE MEMBER: Your Honor just said that you would exclude an opinion that embraced the ultimate fact, and I would think that 704 would allow that.

JUDGE SNYDER: Well, there are some ultimate facts that may be arguably allowed, but when you start telling the jury that the defendant is guilty—that’s what I am talking about.

AUDIENCE MEMBER: Very good. Thank you.

Moderator: I want to thank the three judges who have appeared today. The room here is full, and I think that’s a testament to how much we enjoyed your comments today and how appreciative everyone is that the three of you took time off of your busy schedules to talk with us about complex trials. Thank you very much.

[Page 108]



1. Niall E. Lynch is a partner at Latham & Watkins LLP in San Francisco, California.

2. Judge, United States District Court, Northern District of California.

3. Judge, United States District Court, Central District of California.

4. Judge, United States District Court, Northern District of California.

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