Foreman Hogan. Photo: Jim Gensheimer for the Mercury News
FORTUNE — “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
To this old lawyer’s nostrum, Samsung’s legal team has added a new twist: If pounding the table didn’t persuade the jury, assign an opposition research team to investigate their past.
Based on the results of that investigation, Samsung on Tuesday asked Judge Lucy Koh to throw out the patent infringement verdict that awarded Apple (AAPL) $1.05 billion in damages and order a new trial.
The Korean manufacturing giant’s target : Velvin Hogan, the 67-year-old retired engineer who was selected as foreman because he had served on more juries and knew more about patents that anyone else in the jury room. (See Meet the foreman of the jury.)
Hogan, Samsung claims:
- Didn’t tell the judge he had been sued in 1993 by Seagate, a company with close ties to Samsung and Samsung’s legal team
- Didn’t disclose the personal bankruptcy he had to file as a result of that suit
- Made public statements after the verdict that suggest he failed to answer the court’s questions truthfully in order to “secure a seat on the jury.”
Based on the little I’ve learned this morning about jury misconduct charges, Samsung is going to have a hard time persuading Judge Koh. According Habeas Assistance and Training (HAT), a website for defense attorneys:
“There is hostility from courts, prosecutors and former jurors towards investigators and attorneys inquiring into and raising potential acts of jury misconduct. Thus, these claims are often difficult to litigate and are frequently controversial, striking at the heart of the American system of justice.”
HAT maintains a database of successful jury misconduct cases organized into such categories as Media Influence, Missing Jurors and Unqualified/Misbehaving/Biased Jurors (the latter includes cases involving incompetent, intoxicated, sleeping and racist jurors.)
Two of Samsung’s charges against Hogan would fall under the category Dishonesty on Voir Dire, which usually involves such things as lying about the fact that you’ve got a relationship with the defendant and the prosecutor or, in a rape case, that you’ve been raped and are living in an abusive marriage.
As it happens, Hogan has some pretty good answers to Samsung’s charges.
With regards to the Seagate suit and subsequent bankruptcy, Hogan says the court required jurors to disclose any litigation they were involved in within the last 10 years — which he did. The 1993 Seagate business fell well outside that time range.
“Had I been asked an open-ended question with no time constraint, of course I would’ve disclosed that,” Hogan told Bloomberg News. “I answered every question the judge asked me” and Samsung “had every opportunity to question me.” [A transcript of the voir dire raises questions about Hogan’s account. See UPDATE below.]
As for the charge that he lied to get a seat on the jury, Hogan says he’s willing to swear to the judge that he had no intention of serving on the jury. In fact, the only vote opposing his selection as foreman was the one he cast against himself.
Hogan added that he’s surprised Samsung didn’t know about the history it’s now citing given the relationship the lawyer Samsung refers to in its filing has with another lawyer at the firm representing Samsung.
Going perhaps one step too far, he also wondered aloud whether Samsung “let me in the jury just to have an excuse for a new trial if it didn’t go in their favor.”
UPDATE: Groklaw‘s Pamela Jones, who has written critically about the Apple v. Samsung verdict in the past (she called it a “farce“), has posted a transcript of the section of the voir dire in which Hogan is questioned about prior lawsuits.
THE NEXT QUESTION IS, HAVE YOU OR A FAMILY MEMBER OR SOMEONE VERY CLOSE TO YOU EVER BEEN INVOLVED IN A LAWSUIT, EITHER AS A PLAINTIFF, A DEFENDANT, OR AS A WITNESS?
LET’S SEE. ON THE FIRST ROW, WHO WOULD RAISE THEIR HAND TO THAT QUESTION?
ALL RIGHT. LET’S GO TO MR. HOGAN.
As Jones puts it, the question posed was “Open-ended as the wind,” and although Hogan mentions a 2008 case, he does not volunteer the 1997 Seagate lawsuit. (In his defense, the court did not follow up and ask if he was involved in any other lawsuits.)
It may also be that the “court instructions for potential jurors” that he says specified a 10-year limit was a separate document. We’ve e-mailed Hogan for clarification but have not yet received a reply.
Meanwhile, Dr. Philip Anthony, a professional jury consultant (he’s the CEO of DecisionQuest) has weighed in to say that Hogan doesn’t fit the profile of a “stealth juror”:
“Within the jury eligible population in America,” he explains, “there exists a category we have dubbed as stealth jurors. Such jurors have proven to be those who wish to serve on the jury for personal reasons such as fame, fortune, or making a statement. DecisionQuest has found that approximately 17 percent of the jury eligible population fits the category of stealth juror. On the surface however, Mr. Hogan does not sound like a stealth juror by nature.
“In IP cases, our case specific research frequently finds that past experience with patents, prior jury service, and/or dissatisfaction with a business dispute can be strong drivers of juror attitudes toward patent cases. Trial teams are often advised by their jury consultants to eliminate those jurors who demonstrate the capacity to be a “jury of one” for purposes of deliberations. In this instance, apparently a decision was made to leave Mr. Hogan on the jury notwithstanding his background and potential to be a problematic juror for the defense.”
