Trading Technologies (“TT”) and eSpeed rested on the issues of infringement, validity and damages last week, and the jury now has the case. I attended closings last Thursday. Both sides made strong, persuasive arguments for their desired outcomes. What I thought was most interesting about the closings, from a trial standpoint, was the use of themes. TT’s theme was a story of a boy who eats cookies knowing he is not supposed to and, when his Mom returns and asks him about it, tries repeated lies and distractions to avoid punishment. The story was simple and compelling. Also, it fit well with TT’s case theory, that eSpeed copied its patented software and was simply trying to avoid payment for it. The only problem I saw with the theme, putting aside whether it was supported by the evidence since I did not attend the entire trial, was that it was introduced in the middle of the closing and only referred to sporadically. As a result, even though it was likely a stronger choice of theme than eSpeed’s, it was distracting instead of being integrated into TT’s and, hopefully for TT, the jury’s thinking about the case.
eSpeed’s theme was that TT engaged in a pattern of overreaching, evidenced by exaggerations and partial truths. With each TT witness discussed during its closing, eSpeed identified an alleged exaggeration or partial truth from that witness. eSpeed’s consistent use of the theme was compelling and, although I cannot comment on whether it was supported by the facts at trial, likely resonated well with the jury.
There were a couple of other items worth mentioning from the closings. First, both parties barely touched upon damages. TT explained to the jury that it did not care what amount the jury awarded (either above or below TT’s proposed $3.5M – $4.5M range. TT explained that its main interest was in maintaining the validity of its patents. eSpeed also appeared unconcerned with damages. It explained that the alleged infringement period was only about six months, noted the number eSpeed’s expert gave, assuming infringement — $500,000 – and noted that TT chose not to cross examine eSpeed’s damages expert.
Second, both parties used a substantial number of demonstratives during closings and largely used them effectively. But eSpeed used them slightly better. TT had a PowerPoint presentation including title and summary slides integrated into its closing, in addition to showing relevant pieces of evidence and testimony. In contrast, eSpeed went five or ten minutes into its closing before turning to demonstratives. And when it did, they consisted largely of evidence and testimony, without the summary PowerPoint slides. The effect of TT’s largely constant use of the slides was that the jury focused on the slides more than counsel (although they listened attentively throughout). Some would argue that because the slides made TT’s points in simple, pre-selected statements, TT wanted the jury’s focus on the slides. But I am a fan of old-fashioned human connection and eye contact. I think the jury will take more away from focusing on counsel than on his slides.
I will let you know as soon as I learn the jury’s verdict. For more on this case and Trading Technologies’ related cases click here for the Blog’s archives