Paul Goldstein - A Patent Lie

Tina said, “The rest should be ready for you this afternoon.”

Palmieri called from the courthouse. The jurors had asked Judge Farnsworth to clarify two points of law in the instructions she read to them that morning. Jury instructions in patent cases usually follow a standard format, but before the trial started Farnsworth allowed the parties to propose changes to the usual formula. Seeley's proposed changes slanted the instructions in favor of the patent's validity, and he had been surprised when Thorpe didn't object. He regretted those changes now, but reminded himself that he needed just one juror who had seen or guessed about the news coverage of Lily's story to vote for a mistrial. That lone juror-Seeley's compass regularly pointed to the kid-would need to be sufficiently obstinate to resist the others and, ultimately, to withstand Judge Farnsworth's ardent seduction.

On Tuesday morning, Seeley called his office in Buffalo, but Mrs. Rosziak didn't answer. She hadn't been there yesterday, either, and this worried him. She had not missed a morning since she started working for him, and never left the office before noon. His feeling of dread-had something happened to her husband or son? — was, he knew, irrational, another affliction of his idleness.

Barnum came in after ten and took the chair across from Seeley, propping his feet on the desk. “That was a real roller-coaster ride you took us on the last couple of weeks.”

“Like the county fair,” Seeley said. He had no desire to pick over the details of the trial with Barnum and wondered why the general counsel had come. “Everything except the cotton candy and corn dogs.”

“You sent the Chinese girl to the Chronicle, didn't you?”

Seeley decided that it was Barnum who had told Thorpe about his lunch with Lily. He said, “If you ever met Lily Warren, you'd know that no one gets to send her anywhere.”

Barnum's smile disappeared. “You don't really believe what that reporter wrote in the Chronicle about Thorpe?”

“What do you believe, Ed?”

“I thought Thorpe was brilliant. I would have hired him if St. Gall hadn't already retained him.”

The weekend had obviously been busy for Barnum, with meetings and conference calls with Warshaw, Thorpe, and Dusollier. Doubtless, St. Gall executives in Switzerland had also been involved. The two companies that had set out to collude in a trial were now coordinating their positions for the aftermath. If, as they had planned, the jury voted to uphold the AV/AS patent, everyone would agree that Thorpe had fought gallantly to attack it. And if the jury voted against the patent, or failed to reach a verdict…

Now Seeley saw the reason for Barnum's visit. The lawyers and executives had not only scripted their companies' response to the possible trial outcomes; each, including Barnum, had plotted to protect his own future. Seeley was certain that Thorpe had begun building his own protective wall the day he took the case.

Barnum said, “We thought Bob Pearsall designed a brilliant offense.”

“We?”

“What do you mean?”

“You said, ‘we.’ You and who else?”

“Well, me… and Joel, of course.”

Warshaw hadn't been near the trial, nor would he have read the transcript. “We” was Barnum, Thorpe, and Dusollier, and it was now clear to Seeley who would bear the blame if the jury came back with less than a victory for Vaxtek. A criminal defendant can sometimes win a reversal of his conviction by arguing that his trial lawyer was less than effective. This didn't happen in patent cases, that Seeley knew, but items leaked to the press by Vaxtek's public relations firm, hinting at Seeley's distractions during the trial, might salvage Barnum's career.

Seeley pushed the pile of transcripts across the desk to Barnum. “If you think I wasn't effective as your counsel, look at the record. I built as strong a case for the AV/AS patent as any patent owner could hope for, even when I had to save your star scientist from committing perjury.”

Barnum rested shaking fingers on the papers, but Seeley didn't give him a chance to speak. “You were in the courtroom every day, except for closing argument when you were too scared to show your face. If you thought I was wrecking your company's case, it was your job to let me know. To let Warshaw know, too.”

Barnum's smile was a grim scar. Seeley had left him no room to distance himself from his trial counsel.

“What was it you told me when we were in Leonard's office-you run your cases with an iron hand.”

“The Chinese girl's going down, you know.”

“How's that?”

“When the jury votes that the patent's valid, it's going to vindicate us and Steinhardt. You can be sure our people will be available for interviews. And, if anyone asks who this girl is, what can we say? She's an ambitious single woman from a country that leads the world in piracy and industrial espionage.”

“It sounds like you and your friends had a productive weekend.”

“Let me know as soon as the jury comes back.”

“You'll be the first on my list, Ed.”

At 12:30 Palmieri called to tell Seeley that the jury was deadlocked. Judge Farnsworth had ordered them back to the jury room, and told the jurors not to return until they reached a unanimous verdict.

Seeley waited until 3:30 before calling Mrs. Rosziak at home. She picked up at once and, before he could ask, apologized for not being in the office the last two mornings. “I was visiting Harold at Buffalo General.”

Harold, her son, had been in a bar fight. Seeley wondered how gentle the police had been if they recognized Harold as the man who, just months ago, successfully sued their department for excessive use of force. “Are you okay with bail?”

“We've already posted it.” He heard the fatigue in her voice. “He's coming home as soon as the doctors let him.”

“Tell him not to talk to anyone. I'll take care of it as soon as I get back.”

There was a hesitation at the other end. “I already got him Andy Lewandowski.” Anticipating Seeley's reply, as she always did, she said, “We didn't know when you were coming back.”

“No more than a week.” Whether the jury reached a verdict or remained deadlocked, the trial would be over long before then, and he wanted to spend time with Lily. “Andy's a competent lawyer. Tell Harold he's in good hands.” Seeley would look into it when he got back.

“Are you going to stay?”

She could have been inviting a visitor to dinner, but Seeley knew what Mrs. Rosziak was asking. It was the question he'd been avoiding all the time he was in San Francisco. For years, when he was practicing in New York City, Seeley romanticized the prospect of a return to Buffalo, to a solo practice. Now, from this distance, he could see the move for what it was. Leonard was right: he'd dug a rut for himself and begun decorating it.

As Mrs. Rosziak talked, Seeley idly paged through the steno pads that Pearsall used for sketchbooks and that he had left on the credenza almost three weeks ago.

“You know what Harold says-wherever you go, there you are.”

“Thanks, Mrs. Rosziak, that's very helpful.”

In the first pad was the sketch of Farnsworth, intelligent and self-confident, and in the next, the portrait of Steinhardt, boundlessly arrogant. Seeley studied the drawings of Thorpe, looking for even the faintest trace of the man's depravity, but could find none. If Leonard was telling the truth and Pearsall had in fact conspired with Thorpe to bring the collusive lawsuit, perhaps it was because, debased himself, Pearsall was blind to it in others.

“A lawyer named Girard called last Friday. He said it wasn't a rush. He didn't want to bother you in trial.”

Nick Girard had been Seeley's partner at Boone, Bancroft and Meserve in New York. Seeley's last piece of business at Boone, Bancroft had not gone well either for the client or for the firm's partners, and when Seeley left for Buffalo, neither he nor they were unhappy about the move. But, a year later, Seeley was certain that Girard had called to ask if he would return to the partnership.