A Patent Lie (12 page)

NINE

The moment the taxi turned onto Market Street and Seeley saw the traffic backed up in both directions, he knew that they were going to be late for the meeting in Judge Farnsworth's chambers. The driver caught Seeley's anxious look in the rearview mirror and turned up the foreign-sounding music on the radio; zithers, it sounded like, and low chanting voices. Palmieri saw Seeley's expression, too. “I don't know about New York, but in San Francisco they don't hold you in contempt for being a few minutes late for a pretrial conference.”

They arrived fifteen minutes late at the Phillip Burton Courthouse, a glass-and-granite high-rise that filled an entire block at the edge of the Civic Center, and spent five minutes getting through the security gate. On the nineteenth floor they had to wait for a buzzer to let them into a narrow corridor. Palmieri led Seeley past a warren of offices, courtrooms, jury rooms, more dim corridors, and, finally, to Judge Farnsworth's chambers.

The anteroom had the worshipful hush of a cloister. Barnum was already there. Ignoring Palmieri, he introduced Seeley to Rachel Fischler, who Seeley guessed was Thorpe's second chair, and to a young lawyer from St. Gall's headquarters in Switzerland. Barnum butchered the man's name, which Seeley deciphered as Philippe Dusollier.

Fischler was pear-shaped and had a frizzy thatch of black hair that looked as if no amount of effort would bring it under control. She apologized for Thorpe, who was finishing a trial in Akron, but would be back in time for jury selection on Friday. Her voice was high-pitched, almost a whine. The Swiss was slender and precise in a narrow-cut gray suit and steel-rimmed glasses; he had a porridgy complexion and, oddly, the otherwise thin face showed the beginnings of a double chin. He didn't speak, but the complacent gray eyes told Seeley that Dusollier was judging him, and would be throughout the trial for daily reports back to the home office in St. Gall.

The judge's secretary, who had been watching from a desk in the corner, asked if anyone else was coming. When Seeley told her no, she knocked on the door next to her desk, then opened it without waiting for a response.

Judge Farnsworth's office was softly lit and, with several easy chairs arranged in a semicircle around a sofa, looked more like a well-furnished living room than the heart of a judge's chambers. Fresh-cut flowers were on the end tables and Seeley recognized the framed prints on the walls as coming from small editions by contemporary masters. Floor-to-ceiling bookshelves filled with tan, black, and red volumes of the Federal Supplement and Federal Reporter—along with the American flag in the corner, the only government issue in the room—occupied one wall. Another wall, entirely of glass, framed the gray buildings and domed roofs of the Civic Center and, in the distance, glimmering behind a confusion of stalky construction cranes, the bay. It occurred to Seeley that, when they came to San Francisco, even government architects were seduced by the view.

Ellen Farnsworth rose from a small desk that, like her secretary's, was in an inconspicuous corner, and introduced herself to Seeley, greeting the others by name, pronouncing the Swiss lawyer's name fluently. She was attractive in a dark, heavy-featured way and her suit was elegantly cut; the skirt—shorter than Seeley would have expected on a federal judge—showed off long, well-shaped legs. Federal judges are usually smarter and more able than most of the lawyers who come before them and, with their lifetime tenure, possess a detachment not unlike the composure of a beautiful woman who knows the effect that her good looks have on men. Judge Farnsworth had both. Thorpe was shrewd to select Rachel Fischler for his second chair. Unlike any man he could have chosen, Fischler would implicitly stroke the judge's vanity.

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.”

Farnsworth snapped the calendar shut. “We will start with opening statements on Monday. I hear motions every day at seven thirty and trial starts at eight. A week from next Monday, we'll recess at one thirty so that I can attend a monthly district conference. A week from Tuesday, I want to see your draft jury instructions. I'll give you my draft instructions on Wednesday, and you submit your comments on Thursday. I'll instruct the jury the following Monday.”

Click, click, click
. Seeley was learning something new about women. They were better than any of the men he knew at bending their lives to a single object: Ellen Farnsworth, to efficiency; Lily Warren, to her research; and Judy Pearsall, to proving that her husband had not killed himself.

“Are there any questions?”

Seeley said, “We have no problem with a two-week trial, or with you picking the jury. But the two are connected. It's going to be hard to winnow out witnesses, not knowing what the jury looks like, and if we have no control over that—”

“An interesting point, Counselor. What are you suggesting?”

“That we give you our final witness list Monday morning at seven thirty.”

“Do you have any problem with that, Ms. Fischler?”

“I don't know, Your Honor.” The question flustered her. “I hadn't discussed this possibility with Mr. Thorpe.”

“Why do you need Mr. Thorpe? Your client is sitting right next to you.”

Dusollier shot her a puzzled look.

“It will be fine, Your Honor,” Fischler said. “What Mr. Seeley proposes will be fine.”

Farnsworth rose and gave them an amused but remarkably warm smile. “I will see you all Friday morning.”

When they were in the brightly lit hallway outside the maze of corridors, Barnum gripped Seeley's arm, furious. Seeley pulled away as they went into the elevator. Palmieri came in behind them and said, “That was nice footwork in there.”

Seeley said, “I don't like being put in tight corners.”

“I'm sorry about the papers. I'll take care of it.”

The elevator doors opened to the lobby. “Have them on the clerk's desk no later than one.”

Barnum fumed silently until they were past the security station and out on the plaza. “Get clear on this,” Barnum said. “I make the important litigation decisions—and the order of witnesses is an important decision.”

“I've decided to lead off with Cordier, the South African. I'm putting Steinhardt on fourth, after Chaikovsky and Kaplan.”

“Bob Pearsall was thinking that, too, but he had the good sense to come to me first. I don't care how good your track record is, I get to make that call.”

Seeley wondered what Pearsall's reasons had been for moving Steinhardt. It was the scientist's arrogance that initially concerned Seeley, but since the lunch with Lily, he was also worried that there might be gaps that Steinhardt's well-buffed lab notebooks could not explain. He thought of the words in Pearsall's sketchbook:
What else is
A. S. hiding?
What
else
. What had Pearsall already discovered when he wrote that, and what had he not yet discovered?