Raymond P. Niro - Go for It!: Cross-Examination to Closing: How to Win an Intellectual Property Trial Before a Jury

GO FOR IT!

Cross-Examination To Closing: How To Win An Intellectual Property Trial Before A Jury

Raymond P. Niro

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Published by AuthorHouse 05/12/2016

ISBN: 978-1-4490-3269-2 (sc)

ISBN: 978-1-4490-3270-8 (hc)

ISBN: 978-1-4490-3271-5 (e)

Library of Congress Control Number: 2009910798

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CONTENTS

Frank Calabres e v. Square D Compan y,
Civil Action No. 97 C 2199 (N.D. Ill., Jan. 2000)

C&F Packing Co., Inc . v. IBP, Inc .,
Civil Action No. 93 C 1601 (N.D. Ill., Nov. 1998)

MuniAuction, Inc . v. Thomson Corp .,
Civil Action No. 01-1003 (W.D. Penn., Sept. 2006)

Famolare, Inc . v. Edison Brothers Stores, Inc., et al .,
Civil Action No. 75 C 2708 (N.D. Ill. 1978)

FMC Corp . v. H&K Machin e,
Civil Action No. 88 C 0365 (E.D. Wis. 1989)

Johnso n v. FMC Corp .,
Civil Action No. CIV-S-92 062 GEB (E.D. Cal. 1994)

Black & Decke r v. Colema n,
Civil Action No. CA 96-656-A (E.D. Va. 1996)

Wolen s v. Wear-Ever Aluminum, Inc., et al .,
Civil Action No. 79 C 4291 (N.D. Ill. 1980)

Trimless-Flashless Design, Inc . v. Thomas & Betts Corp., et al .,
Civil Action No. 00-245-A (E.D. Va., June 2001)

TeleCommunication Systems, Inc . v. Mobile 365, Inc . ,
Civil Action No. 3:06-CV-485 (JRS) (E.D. Vir., May 2007)

Injection Research Specialists, Inc . v. Polaris Industries, L.P . ,
Civil Action Nos. 90-Z-1143 and 91-Z-663 (D. Col., April 1997)

Dastghei b v. Genentec h ,
Civil Action No. 2:04cv1283 (E.D. Pa., Nov. 2006)

Sakharam D. Mahurka r v. C.R. Bard, Inc . ,
Civil Action No. 92 C 4803 (N.D. Ill., Aug. 1994)

Westinghous e v. Southwestern Engineerin g ,
Civil Action No. 82 Civ. 681 (D. Del., Oct. 1986)

Black & Decker (U.S.) Inc., et al . v. The Coleman Company, et al . ,
Civil Action Nos. 96-656-A, 96-216-A and 96-1512-A (E.D. Va., Aug. 1996)

Sufri n v. Hosie r ,
Civil Action No. 94 C 608 (N.D. Ill., Dec. 1996)

Black & Decker Inc., et al . v. Robert Bosch Tool Corp . ,
Civil Action No. 04 C 7955 (N.D. Ill., Sept. 2006)

IMS Technology, Inc . v. Haas Automation, Inc., et al . ,
Civil Action No. 97-1043-A (E.D. Va., Aug. 2000)

Black & Decker Inc., et al . v. Porter Cable Corp . ,
Civil Action No. 98-436A (E.D. Vir., Feb. 1999)

Flint Ink Corporatio n v. Sharen E. Browe r ,
Civil Action No. 93-CV-73761-DT (E.D. Mich., March 1996)

USM Corporatio n v. Detroit Plastic Molding Compan y ,
Civil Action No. 6-72536 (E.D. Mich., Dec. 1980)

National Business Systems, Inc . v. AM International, Inc . ,
Civil Action Nos. 80 C 4915 and 81 C 6227 (N.D. Ill., April 1986)

In The Matter Of Mahurkar Double
Lumen Hemodialysis Catheter Patent Litigatio n ,
Civil Action No. MDL-853 (N.D. Ill., Aug. 1993)

Grail Semiconductor, Inc., et al . v. Mitsubishi Electric & Electronics USA, Inc., et al .,
Civil Action No. 1-07-CV-098590 (Cal. Sup. Ct., Santa Clara, April-May 2012)

I was inspired to write this book after reading some stories about cross-examination written by alleged masters at the art. Unfortunately, I found that some examples were good, a few exceptional and most merely adequate. That led me to think about my own cases, some of their defining moments (every case has at least one defining moment) and how we were fortunate enough to electrify a judge or jury with a winning cross-examination and closing argument. Let me share some of these moments with you in the hope they will provide guidance and inspiration for future cross-examinations and closings.

A special thanks to Judy for her unwavering support in nearly every one of these cases: I could not have done it without her.

Raymond P. Niro
October 2009/February 2012/ May 2016
Raymond P. Niro 2009/2012/2016

To My Sons,
Dean, Raymond, Brian and Sean

Special Thanks

I have so many people to thank: my parents for giving me the drive to succeed and the street smarts to relate to people, Paul Vickrey for editing the sections on the C&F , TFD and Haas cases, Chris Lee for his help on the Coleman , Calabrese and Grail cases, Martin Fineman, one of the best trial lawyers I know and my co-counsel in the Grail case, Shanna Kwall for her editing and organization, Venita Berzina for her research, Donna Wartman for being there again and again (just like in most of the cases) and, of course, all the lawyers, paralegals and staff in every case discussed in this book, Tom Scavone, Tim Haller, Bill Niro, Joe Hosteny, John Janka, Bob Vitale, Paul Vickrey, my sons Dean and Raymond Niro, Pat Solon, Art Gasey, Chris Lee, Dave Sheikh, Bill Dossas, Sally Wiggins, Rich Megley, Matt McAndrews, Paul Gibbons, Brady Fulton, Greg Casimer, Doug Hall, Dina Hayes, Chris Laney, Dave Mahalek, Kara Szpondowski, Bob Conley, Laura Kenneally, Tahiti Arsulowicz, Brian Haan, Joe Culig, Anna Folgers, Nick and Dan Hey, Judy Niro, Katy Brennan, Ray Rzeszutko, Jenna Bayer, Erin Hobin, Cara Feinholz, Jane Zuckerman, Barb Baboian, Anne Marie Byrne, Tony Pichotta, Clare Sullivan, Barb Zylman, Susan Swierk, Lisa Esquivel, Angelica Regalado, Liz Vondrasek, Carol Koski, Mary Martin, Sue Burke, Marianne Mecyssne, Kim Nicks, Jim Koncz, Patrick Johnson, Dylan Brown, Judy Lockhart, Jorge Molina, Patrick Zanotti, Patrick Duggan, Jason Hicks, Jeff Lasley and Arnold Campbell.

PART I
THREE OF THE BEST

Frank Calabrese v. Square D Com pany ,
Civil Action No. 97 C 2199 (N.D. Ill., Jan. 2000)

C&F Packing Co., Inc. v. IBP, Inc. ,
Civil Action No. 93 C 1601 (N.D. Ill., Nov. 1998)

MuniAuction, Inc. v. Thomson Corp. ,
Civil Action No. 01-1003 (W.D. Penn., Sept. 2006)

HOW TO WIN WITH ONLY ADVERSE WITNESSES

Frank Calabres e v. Square D Compan y,
Civil Action No. 97 C 2199 (N.D. Ill., Jan. 2000)

Perhaps once in a lifetime, you get a chance to really make a difference in someones life. I have been lucky enough to have been given multiple chances. This case is one example. The patent was poorly written. The case seemed dead and came back to life through an appeal no one in our office (except Chris Lee and me) was willing to take.

Frank Calabrese was an electrical engineer. Without the benefit of any research grant or big-company funding, he invented a new industrial control system called a data relay system. I explained Franks invention in my opening by analogy to the rooms of a house where data from each room had to be monitored with minimal use of separate wires. First, the problem (the hand-written sketch I used in the Opening):

Now the patent; Frank Calabreses patent, issued on an application that was filed almost 20 years ago. Its been said that necessity is the mother of invention, and I want to show you in the briefest form with a sketch. I apologize in advance because Im not a very good sketcher.