Tuesday, May 10, 2005



My company is the defendant in a patent-infringement case brought by one of our competitors. Today, I had to give a deposition. I've never had to do that before. The thought of spending a few hours locked in a room with lawyers, trying to remember events that happened over a year ago, constantly being afraid of saying something damaging to our case, filled me with dread. However, it wasn't as bad as I expected it to be. In fact, it was less unpleasant than going into the office would have been.

I won't describe the details of the case, but in a nutshell the plaintiff claims that our company infringed upon two of their patents when we created a product similar to one of their products. I was involved in the development and deployment of that product. So the plaintiff's lawyer's job was to get me to say something that (a) confirmed that our product does indeed infringe upon the patents, and (b) to confirm that we knew about the patents when we infringed upon them, as damages are increased if there is "willful infringement."

It wasn't too hard for me to avoid saying anything damaging, because thankfully I really don't know much about how the product came to be. I joined the company after it had been designed, so I honestly have no idea how its features were designed, who designed them, and whether those people knew they might be infringing on patents. "I don't know" and "I don't remember" were my answers to many of the questions.

The opposing lawyer tried to get me to describe our product's features using language from their patent. Our counsel, of course, had warned me to pay close attention to what I said, and to the specific words in the opposing counsel's questions. I was asked the same questions in many different ways, in an attempt to get me to answer differently, but I was able to stay consistent.

It took a lot of concentration on my part. My natural tendencies are to be helpful when people ask me questions. I want to explain things that they don't understand. I want to help them learn. I want to reach mutual understanding and agreement. My little trick to avoid being too helpful was to think of the opposing counsel like I think of an unreasonable manager or unreasonable customer, and to treat him accordingly: I gave him exactly what he asked for and was entitled to, but no more.

After a couple of hours of that, the opposing counsel started asking many questions that seemed irrelevant to the case. I answered all of the questions as well as I could, but I got a little worried because they didn't make sense and I had no idea where he was heading. I feared he would suddenly produce a "smoking gun" document that contradicted everything I was saying, causing our whole case to come crashing down, but that never happened.

One effect of my involvement in this case is that I am going to be a lot more careful about what I write in e-mail. He kept presenting me with e-mail messages from a year-and-a-half ago and asking me to explain them. In some cases, I couldn't remember writing them. Some had too-brief descriptions of technical issues that come across as gibberish now. Others held some embarrassing statements like "We didn't have time to do this right," which I don't think are relevant in this particular case but which I can imagine could be damaging in other kinds of disputes. Unfortunately, in a litigious society, it doesn't pay to be frank and communicative.

We started at 9:30 this morning. We took a lunch break at 1:00 PM, getting back into it at 2. A little before 3:00 PM, the opposing counsel finally said, "I have no further questions for this witness," and I was free to go.

Our counsel said that I had done well. He was as perplexed as I was about what the other lawyer was trying to get at during the last couple of hours. He noted that I had seemed nervous for the first hour or so, but then seemed really comfortable and cool after that. That wasn't how I felt.

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