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 Chronepsis wrote:
Flying them in to testify as an expert witness isn't bribery.

Expert witnesses are paid for their services, so it is essentially impossible to bribe them (as in money they are not supposed to take), its all out there in the open.

Conflict of interest; you can't pay a government employee to appear in court. If they do so, it will be at the behest of the court and under the authority of their office.

Sort of - though you can fly a government agent in to testify as an expert in their field and only reimburse them for their expenses (travel, lodging, per diem) as well as any lost wages.

It is done quite often in environmental lawsuits.

xxvaderxx wrote:

 Chronepsis wrote:
Flying them in to testify as an expert witness isn't bribery.

Expert witnesses are paid for their services, so it is essentially impossible to bribe them (as in money they are not supposed to take), its all out there in the open.

You know I wrote isn't (is not) right?

Oh i know, just adding to you point, meant to say that their declarations are very frequently payed for, thus arguing bribery is often pointless.

Ya'll might find the comments to this article interesting. The article is generally about the reliability of expert testimony and appeared in the January issue of The Jury Expert, which is a publication of the American Society of Trial Consultants. The commentator, who is the president-elect of the American Society of Trial Consultants, goes into what he has seen as a shift in the way that jurors perceive experts, and he talks in particular about the impact of the fees charged by hired experts, which always comes into evidence.

weeble1000 wrote:
Ya'll might find the comments to this article interesting. The article is generally about the reliability of expert testimony and appeared in the January issue of The Jury Expert, which is a publication of the American Society of Trial Consultants. The commentator, who is the president-elect of the American Society of Trial Consultants, goes into what he has seen as a shift in the way that jurors perceive experts, and he talks in particular about the impact of the fees charged by hired experts, which always comes into evidence.

That IS very interesting.

weeble1000 wrote:
Ya'll might find the comments to this article interesting. The article is generally about the reliability of expert testimony and appeared in the January issue of The Jury Expert, which is a publication of the American Society of Trial Consultants. The commentator, who is the president-elect of the American Society of Trial Consultants, goes into what he has seen as a shift in the way that jurors perceive experts, and he talks in particular about the impact of the fees charged by hired experts, which always comes into evidence.

I think the most important thing is the belief (often rightly so) that testimony can be bought and paid for to reflect any position which you want it to reflect. In that regard, unpaid experts - especially if they are a disinterested party (not connected directly to either side of the case) quite often still are able to sway the jury by their testimony. That shift has been helped along with the various law shows which often show the "experts" as hacks for the evil side of the case.

My memory is foggy - but I seem to recall an article in a technology magazine by one of the EFF staffers (might have been a different group in the same vein though...) who mentioned that because most the work they are involved with is volunteer and unpaid (beyond the basics like travel/lodging) they are able to still leverage their expert witnesses. Since they are viewed as holding the position of rights and freedoms by many, there witnesses are given an altruistic view from a lot of jurors.

We have a procedure around here where the judge can order or appoint (or the parties can agree to having) joint experts to deal with the issue of tame experts.

But we don't really do jury trials for civil matters, so the issues are a bit different.




Anyhooo.... It would have been to GWs advantage to get the registration sorted ahead of time - now they don't get the luxury of administrative appeals / tribunals and instead get the fun of a hostile defendant and possibly a hostile copyright office lawyer.

And a judge who doesn't like funny games:

http://abovethelaw.com/2013/01/benchslap-of-the-day-skadden-smacked-eats-crow/#more-217723

http://abovethelaw.com/2013/01/benchslap-update-skadden-partners-learn-their-fates/#more-218574

(above the law is a very annoying site, but the only link I could find).

CHS's reponse to GWs discovery motion:


And, note the new counsel is stepping up to the plate. Ms. Julianne M. Hartzell filed these.

In the UK, I think expert witnesses took a slap in the face when it was found that they could be plain wrong.

http://www.guardian.co.uk/news/2005/jun/20/childprotection


Automatically Appended Next Post:

 Kilkrazy wrote:
In the UK, I think expert witnesses took a slap in the face when it was found that they could be plain wrong.

http://www.guardian.co.uk/news/2005/jun/20/childprotection

This is not to deny that expert witnesses have a better knowledge of their subject than the ordinary person in the street, yet it does show that "even monkeys can fall from a tree" as the Japanese say.

There is a general attitude that science is a certainty, which is incorrect in both ways.

Am I right in thinking that the list of posts made by Nicholas Villacci and messages to him via facebook has been placed "under seal", so not viewable by us (the public)?

If so, why would this be? Surely they are already publicly viewable, aside from the "handful of" facebook messages?

They were probably private messages via facebook relating to business matters between the two.

So im very confused by this whole affair, can anyone give a synopsis of whats going on and what stage its at? (and whos 'in the lead' as it were), as this thread has become a bit of a monster and I don't really understand half of whats being said anyway. (so idiot speak please )

GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.

Then a lot of things happened, items were added to the claim, bla bla bla.

Then in the last 8 months this happened:
Then GW files for copyright on a blank SM shoulder pad.
Copyright office declines the copyright.
GW fails to mention this to the judge.
Judge rules that shoulder pad can go to trial(many items were thrown out of the case).
GW then takes that ruling to the Copyright office and says that they need to copyright it.
GW still fails to report this to the judge.
CHS finds out about this, tells judge.
Judge says that CHS has to wait until Copyright office makes a final decision.
Copyright office still says no.
CHS refiles their motion to have the shoulder pad thrown out.
GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.

All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.


More or less.

 Aerethan wrote:
GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.

Then a lot of things happened, items were added to the claim, bla bla bla.

Then in the last 8 months this happened:
Then GW files for copyright on a blank SM shoulder pad.
Copyright office declines the copyright.
GW fails to mention this to the judge.
Judge rules that shoulder pad can go to trial(many items were thrown out of the case).
GW then takes that ruling to the Copyright office and says that they need to copyright it.
GW still fails to report this to the judge.
CHS finds out about this, tells judge.
Judge says that CHS has to wait until Copyright office makes a final decision.
Copyright office still says no.
CHS refiles their motion to have the shoulder pad thrown out.
GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.

All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.


More or less.

They need you to host Cspan.

cool, thanks for that

 Aerethan wrote:
GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.

Then a lot of things happened, items were added to the claim, bla bla bla.

Then in the last 8 months this happened:
Then GW files for copyright on a blank SM shoulder pad.
Copyright office declines the copyright.
GW fails to mention this to the judge.
Judge rules that shoulder pad can go to trial(many items were thrown out of the case).
GW then takes that ruling to the Copyright office and says that they need to copyright it.
GW still fails to report this to the judge.
CHS finds out about this, tells judge.
Judge says that CHS has to wait until Copyright office makes a final decision.
Copyright office still says no.
CHS refiles their motion to have the shoulder pad thrown out.
GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.

All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.


More or less.

but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)

so they may do the unexpected (like letting GW win on all remaining counts)

whatever happens you can bet on more years of appeals

 OrlandotheTechnicoloured wrote:

 Aerethan wrote:
GW sued for X, CHS says "prove that you own X", GW fails to prove ownership.

Then a lot of things happened, items were added to the claim, bla bla bla.

Then in the last 8 months this happened:
Then GW files for copyright on a blank SM shoulder pad.
Copyright office declines the copyright.
GW fails to mention this to the judge.
Judge rules that shoulder pad can go to trial(many items were thrown out of the case).
GW then takes that ruling to the Copyright office and says that they need to copyright it.
GW still fails to report this to the judge.
CHS finds out about this, tells judge.
Judge says that CHS has to wait until Copyright office makes a final decision.
Copyright office still says no.
CHS refiles their motion to have the shoulder pad thrown out.
GW stalls, and in doing so loses the option to appeal the Copyright offices' decision and leaves it solely in the hands of the trial, at which the Copyright Office will likely show up and explain how/why the shoulder can't be copyrighted.

All the while GW spends hundreds of thousands in legal fees, and CHS lulz and continues business.


More or less.

but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)

so they may do the unexpected (like letting GW win on all remaining counts)

whatever happens you can bet on more years of appeals

Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.

Now what we have to hope for is that CHS's legal team does a proper job of explaining copyrights and the decision of the USPTO well enough that laymen understand it and are able to make a more informed ruling.

I'm not sure if the trial will have lawyers pointing out all the fun details like GW and Moskins shady practices in regards to this case, which is a shame because it certainly would affect ones opinion of then.

As I said before, this is one trial that I'd actually pay to be a juror on.

 OrlandotheTechnicoloured wrote:

but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)

so they may do the unexpected (like letting GW win on all remaining counts)

whatever happens you can bet on more years of appeals

If it will be a jury trial, then the request for CHS' various internet postings may be to set-up character assassination. If they can't win based on the law or facts, make the jury be disgusted with CHS. Before the lawsuit, he was not viewed in the most positive light on some forums and was very combative and dismissive toward detractors.

 Aerethan wrote:


Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.

Hey now. It is easy to bash the American jury system, but it is the greatest system in the world. There is something to be said for collective wisdom, and if there are problems in the system, it is not that there are juries, it is far higher up the food chain. The system works 95% of the time, which is frankly an incredible achievement of democratic government. The 5% of times it does not work are conspicuous precisely because the system is a huge part of what keeps American citizens in the type of freedom that we enjoy every single day. It is painful to see injustice because we are used to seeing good justice done.

So don't be too quick to slam the jury system, especially if it is because you don't agree with a particular decision made by one jury. I'm not saying you have but if I am going to off-topic soap box I'm going to get it all out there. I see hundreds of people deliberate on wide ranging issues and it has increased my confidence in the system, rather than eroding it.

silent25 wrote:

 OrlandotheTechnicoloured wrote:

but as this will be a jury trial we have the added fun of real people who know nothing about copyright law (and may not pay attention in trial involved)

so they may do the unexpected (like letting GW win on all remaining counts)

whatever happens you can bet on more years of appeals

If it will be a jury trial, then the request for CHS' various internet postings may be to set-up character assassination. If they can't win based on the law or facts, make the jury be disgusted with CHS. Before the lawsuit, he was not viewed in the most positive light on some forums and was very combative and dismissive toward detractors.

No, the requests for CHS communications are fishing for statements like "Make this object look like the picture on page 46" or "Make that part look more like the helmet on 'Eldar Warlock with Witch Blade' as opposed to 'Eldar Farseer with Staff'". They are hoping to find words which amount to telling their sculptors to copy specific figures or pictures as opposed to using descriptions, styles and themes of the various miniatures to influence the sculptures.

Jury trials are a bit of a wild card - though you really are not necessarily better off having a bench trial where the judge decides everything as opposed to a jury trial. A judge can not really choose to ignore a law, no matter how dumb it might be - their job is the enforce them as they are written. A jury on the other hand is perfectly within their rights to say...they might have done something against that law, but the law is stupid - so I won't find against them. More often then not, the jury would be inclined to do that for a small group or individual as opposed to a much larger company.

In the realm of IP law, there are a lot of stupid things that your average person off the street wouldn't think is a good law and may be more willing to nullify.

Are the lawyers even allowed to tell the jury the fact that jury nullification exists, down there?

Not directly...no. Because lawyers, like judges, are agents of the court (law) - they can't directly say that the law should be ignored. However, that doesn't stop it from happening with some frequency. I haven't looked at anything recently - but I recall in the late 1990s or early 2000s (still seems odd to type that) it was estimated to be around 5% or so of jury trials had been effectively nullified in one way or another (either outright acquittal or hung juries and the like).

I don't think any standing jury instructions include jury nullification, though I may be wrong on that. I know some courts really do not like the idea, though it has been recognized by the supreme court as valid (granted - I think that was a hundred years ago or so).

In this particular case it is important as even if the jurors believe for whatever reason that the GW lawyers demonstrate that CHS misused their trademarks - the jurors may well decide during deliberation that the misuse should actually be allowed because of the nature of CHS business. In the same way, certain copyright claims by GW may end up being proven...but the jurors may decide that the demand generated by GW introducing figures in their books but then not including figures to fulfill that (various tyranids, jetbike warlock/farseer...) position, the transgression should not be punished.

It's a bit of a shame jury nullification hasn't been given more attention. The notion of it is that its one our systems checks the against judicial and litigious tyranny. It's frowned upon because a jury is not trained in maters of law and it benefits the prestige of the system that law only be interpreted by those in legal professions. Examples of where it was intended to be used are to limit attempts to broadly stretch the interpretation of the letter of the law beyond the intended purpose or where mitigating circumstances make the execution of the law unjust.

An example of where scholars believe the principle should have been applied was a case where a nascar driver who lived on a ranch, got cought in a blizzard and in his attempt to survive and make it home got lossed and crossed into a wildlife reserve on his ATV... He was found guilty of trespass and operating a motor vehicle on a reserve and paid several tens of thousands of dollars in fines with mandatory jail time. In this way an anti-poaching law was used against someone who was just trying to not die, but the strict liability of these laws left no way besides jury nullification to say what he did was okay, but they weren't informed of that right.

I study juror and jury behavior for a living. Jurors by and large make good faith attempts to follow the law and their instructions from the Court. Problems can come in when jurors misunderstand a point of law, such as not understanding that something does not have to be patented to be prior art.

Now, that said, what you will find is that jurors can make a decision about a case that is motivated by something other than a legal theory, and then do their level best to make that decision fit within their role of applying the facts as they find them to the law. A statement of "I think the Plaintiff's expert is more convincing" is a perfectly rational and appropriate interpretation for a juror to make, but it may have been strongly colored by, say, a perception that the Defendant tried to take advantage of the Plaintiff.

It would be incredibly rare in the extreme for a juror to actually say that they want to find a certain way that is inconsistent with a law because the law is stupid, wrong, or unjust.

Most cases that go to trial involve disagreements over the interpretation of both the law and the facts such that whoever a juror wants to find for, proper tools exist to render such a verdict.

Where jurors will flagrantly disregard instructions from the Court is when it comes to determining monetary damages. First, damages are one of the clearest indications of a juror's emotional response to a case. Calculating damages allows for a great deal of variance and generally speaking, if a juror is mad as hell, damages will be higher. So too, if a juror feels that a case is weak, but feels compelled to find a certain way because of a point of law or a technicality, that juror will often want to moderate damages.

Now, once you factor in group dynamics, arriving at a damages amount almost never follows proper procedure. Put 12 people in a room who all feel that a different number should be awarded, some whose math is wrong, some who do not understand the evidence, some who disregard the evidence, some who compromised on liability but don't really agree with the decision, and you have a tough situation in which to create unanimous agreement.

So what happens is that the group finds a number that everyone can live with, regardless of how it was calculated. Sometimes they put it down without rationalizing how it was arrived at, other times they come up with a completely absurd calculation that produces the desired number by a process more akin to alchemy than mathematics. But whatever the process, the number is often a distillation of the various emotional reactions to a case.

Here is a fun story for ya'll to chew on. I once worked a case where the client was principally concerned about increasing the damages award in a case. We ran a project that involved a presentation to one group of participants who deliberated and following that the same presentation to a second group of participants.

In the first session the Plaintiff's damages request was, let's fake up a number and say $200,000. The participants returned an award of $100,000. The client comes to us between sessions lamenting the low award. I tell him that in his next session he should say $400,000 instead of $200,000. The participants come back at $200,000. You see, the participants wanted to give the Plaintiff half of what it asked for, it did not matter what the amount was or how it was calculated. The Plaintiff only deserved 50% in the minds of the participants.

Also, everyone should watch the 1957 film, Twelve Angry Men.

weeble1000 wrote:

 Aerethan wrote:


Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.

Hey now. It is easy to bash the American jury system, but it is the greatest system in the world. There is something to be said for collective wisdom, and if there are problems in the system, it is not that there are juries, it is far higher up the food chain. The system works 95% of the time, which is frankly an incredible achievement of democratic government. The 5% of times it does not work are conspicuous precisely because the system is a huge part of what keeps American citizens in the type of freedom that we enjoy every single day. It is painful to see injustice because we are used to seeing good justice done.

My missus is from California and as a result we spend most of our time there, so I'm not as used to this type of Greatest nation in the world flag waving nonsense that somewhat embarrassingly they appear to practice in other parts of the states, but I have to ask, are you actually being serious?

If you aren't I congratulate you on the mastery of sarcasm.

If you are, I suggest you Google the OJ Simpson trial, and then work your way on from there!

 mattyrm wrote:

weeble1000 wrote:

 Aerethan wrote:


Very true. It's certainly a major flaw in the system that any random person can decide the fate of a matter than may be far beyond their own comprehension, like giving a child launch codes and the key.

Hey now. It is easy to bash the American jury system, but it is the greatest system in the world. There is something to be said for collective wisdom, and if there are problems in the system, it is not that there are juries, it is far higher up the food chain. The system works 95% of the time, which is frankly an incredible achievement of democratic government. The 5% of times it does not work are conspicuous precisely because the system is a huge part of what keeps American citizens in the type of freedom that we enjoy every single day. It is painful to see injustice because we are used to seeing good justice done.

My missus is from California and as a result we spend most of our time there, so I'm not as used to this type of Greatest nation in the world flag waving nonsense that somewhat embarrassingly they appear to practice in other parts of the states, but I have to ask, are you actually being serious?

If you aren't I congratulate you on the mastery of sarcasm.

If you are, I suggest you Google the OJ Simpson trial, and then work your way on from there!

Agreed, that came over as fairly jingo-istic. Also, a pretty illogical statement. If it was so easy to bash the system (which I agree, it is), how can it be the best system in the world? Surely one would expect such a system to be rather hard to attack, especially when compared to similar systems. And which other judicial systems did he check on during your research? There are at least 15 other countries with jury systems of some sort, most of which do not follow the anglo-saxon common law tradition, plus another 10-20 more or less democratic judicial systems without juries at all.

I am absolutely being serious. I believe whole-heartedly in the jury system. It is a cornerstone of American democracy. I work incredibly closely with the jury system on a daily basis and from what I have seen it works; not every time, not perfectly, but in an overwhelmingly, staggeringly huge margin it works precisely as it is intended to.

Like I said, the failures tend to be conspicuous because the system works so well. You mentioned OJ Simpson. One glaring example of a show trial that had a whole lot more going wrong than a failure of the jury system. And how old is that case now?

For every OJ Simpson there are thousands of cases where good justice is done. What about Casey Anthony, if you want to focus on conspicuous show trials? That case was a monumental failure of the criminal justice system that was saved by a group of jurors taking their task seriously and making a decision consistent with the law and the philosophy of justice that is a fundamental tenant of our democracy.

The US is by far not a perfect country, and there is a great deal to criticize about government today, but criticizing the jury system is like criticizing the US Constitution, which at its core I don't think anyone would say is a terrible idea, but rather the contrary.