Mark McKenna: They will have to first focus on the validity of the rights Apple and Samsung claim. A lot of the instructions have to do with damages, and damages are irrelevant if the rights aren't valid. Then I think they have to guard against the risk of just looking at the Apple and Samsung devices in comparison to each other, without looking more broadly at what else came before, and what other devices out there look like. And they have to be careful not to buy into the narratives either side is telling and focus on the instructions. They're also going, in some cases, to have to go device-by-device. That will be a slog, but they don't have a choice.
Christopher Carani: Take one question at a time and follow the jury instructions as best you can. Don't be the student who fills out a multiple-choice exam by checking "Answer D" for every question. While perhaps tempting and expedient, justice will not be served. If you are going to faithfully fulfill your duty as a juror, understand that there is no quick way to complete the verdict form. Remember, at issue, there are seven Apple patents (four design patents and three utility patents) against 28 Samsung products (26 smartphones and two tablets) along with trade dress and antitrust claims. In return, Samsung has asserted five patents against five Apple products (three iPhones, the iPad and an iPod). If there are any findings of liability, the jurors then have to shift gears and tabulate damages on a per-patent, per-accused product basis.
Roy Futterman: I would tell this jury to start broad before deciding on the details. In our experience watching scores of mock juries deliberate, we typically see jurors work out a lot of the broader underlying issues before they move on to working out the detailed verdict questions. I would advise the jury to have a long discussion about the case as a whole before moving to the individual verdict questions. Mostly though, I would advise the jurors to settle in and take their time. They have a strikingly complex verdict form with 33 questions on which to come to unanimous agreement.
Are they companies playing with fire by letting such a complex issue get into the hands of a jury? Was it smart to let it go this far?
Bill Panagos: The jury is the most perfect of the many imperfect ways so far devised to ascertain the facts in a matter and render a decision that generally is right, fair and equitable. That being said, once the jury is involved, the decision-making ability of the business people in either party begins to diminish as they progressively lose control over the outcome of the case. Oftentimes, cases are settled during jury deliberations. In a very important matter such as this, complex commercial and business issues intermingle with the patent issue to complicate the matters to be decided by the jury. In high-stakes litigation such as this, the winner will dominate a growing multibillion-dollar market. The loser may find itself with little or nothing to show for its efforts in the case. While there will undoubtedly be appeals from any jury verdict, each party will honestly assess the relative strengths and weaknesses in their respective positions, and may reach a commercial resolution.
Roy Futterman: In our experience with complex patent litigation, we see that when a case like this gets all the way to trial, it is very close and could go either way. If it has come this far, it means that the parties have decided that it could not be settled.