I think most attorneys admire counsel who can think outside-the-box and push the law forward.
I still remember the original, magistrate-judge-level oral argument in TC Heartland, where the Court asked counsel "if your argument is correct . . . there's really only two venues in which the suit can go forward, am I right?" and counsel answered with the oral argument equivalent of "yup"—even though that outcome was directly contrary to controlling Federal Circuit precedent and how everyone had done things for decades.
Then they appealed all the way to the Supreme Court, and changed the law for everybody. Mic drop.
Anyway, after Monday's post and today's, I'm getting the feeling that counsel for defendant Masimo in Apple Inc. v. Masimo Corp., C.A. No. 22-1377-JLH (D. Del.) may likewise have some outside-the-box tendencies.
Today, it's about jury selection. Anyone familiar with jury selection in the District of Delaware knows that you cannot expect to ask the jury pool anything other than yes or no questions during voir dire. That's how it has to work, mechanically, because the judge queries the entire pool at once, and then calls anyone who answered "yes" back for further questions.
Yet counsel for Masimo pressed the Court to permit voir dire questions that are decidedly not yes or no questions, including:
1. Where do you work?
2. What is your level of education?
3. If you have a spouse, what is their occupation / former occupation?
4. Do you have any children? If so, what are their ages and occupations?
5. Where do you live / where did you grow up?
6. Where do you get your news?
7. What are your hobbies?
8. Do you belong to any clubs / groups?
Id., D.I. 725 at 4. Masimo argued that, absent these questions, "the parties could be left exercising peremptory challenges based on a juror’s appearance and the limited demographic information provided on the jury list." Id.
Judge Hall did not go for it:
ORAL ORDER: The Court declines to adopt the additional voir dire questions proposed by Masimo . . . . Masimo's new request to ask the venire "additional, basic background questions" that do not call for yes/no answers (1) was not proposed in the parties' proposed voir dire filed with the Court prior to the pretrial conference, which the Court expended resources editing; (2) is inconsistent with the Court's jury selection procedure as explained at the pretrial conference; (3) is inconsistent with how jury selection is typically conducted in this district; and (4) will significantly extend voir dire in this timed trial, which, given the number of hours requested by the parties, is already at risk of not completing on time; accordingly, the request is denied. The Court further notes that the parties will receive some basic biographical information on the juror lists that are provided to the parties.
That's exactly what I would have expected to happen. Honestly, it's hard to imagine how the D. Del. process would work with an open-ended voir dire to the entire initial pool. Did they expect jurors to expound on their hobbies and where they get their news in front of everyone? I'm curious what Masimo had in mind.
That said, it's nice to see attorneys thinking of ways to improve the process—and it's always good to know what doesn't work.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
