Shoot-Out On the Volga

Yeah, maybe I'm beating a dead horse with the titles, but I don't care.

Yesterday was the first (or depending how you view it, the third day) of the trial in my Stalingrad case. The judge decided he was going to really reign us lawyers in and really get this thing done in an afternoon. All the expert testimony was going to be done in record time. The cross examinations would be crisp, clean and to the point. The rest of the evidence would come in on declarations as much as possible.

If you are saying "Huh?" at this point, you are not alone. Essentially what should have been a short, little matter taken care of in 20 minutes decided back a few months ago, has now blossomed into a full bench trial. By refusing to make decisions earlier in this matter, this judge has effectively lost control over how long this is going to take.

So after the judge made these pronouncements in chambers, he let the other side put on their case (which is correct since they are the ones who initiated the matter). This started with a non-expert witness (despite what the judge had instructed us to do, mind you). All this person could testify about was that they had received certain documents. They could not verify where they came from, just that they had come to this witness. Basically, a waste of everyone's time since we had offered to stipulate that the witness had received them if they would stipulate that the witness could not say where they actually originated from or who had authored the documents.

The only good thing that came out of this witness' testimony was when I lead her into talking about another document. For technical reasons, it was very important that the witness authenticate the document. The witness did. The only problem is, no one except my expert and I understand just what this witness testified to the time. Everyone else in the courtroom was scratching their heads. The judge looked like I'd just handed him the tower chiefs' log books from Gitmo and Andrews Air Force Base.

Next up was the first part of the main event: the other side's expert. The experts were ordered by the court to deal with a series of emails. They say we sent them and should be bound by them. We maintain that we did not send most of them, and certainly none of the ones which should bind my client.

They did their direct of the expert (whom I'll Prof. A). Prof A has a long history of computer security work, publishing, and giving talks in addition to testifying. All credentials are super, but I'm getting the feeling he is transitioning more into being a professional expert. And why not, the pay is much better.

But there was a problem with his work on this case. He had gotten sloppy. After testifying as to the standards of how it should be done, Prof A then testified that he did not do that. And I got to have fun with that (and had to resist going into Vincent LaGuardia Gambini mode, finger and all). One of the big discrepencies has to do with telephone calls. One service provider has records of calls being received from a certain number. Another service provider, the one who provides the number to my client, has no record of those calls going out. When I asked Prof A about this, he said that it just meant that the service provider was sloppy in its billing.

Sloppy in its billing? 37 times? This was followed up by another fine nuggest that Prof A said in response to whether the discrepancy was due to someone using a spoofing program for VoIP calling. His response was that it was highly unlikely. And yet, it was more likely that a service provider, on a set minute plan, would miss all those minutes of talk time to a number on a another service provider's plan (and no, there was no Fave 5 or Circle of Friends garbage in either person's phone plan).

Basically, by the end of their expert's testimony the only thing which was reasonably certain was that emails were received. Calls were received. But the origins of both could not be truly ascertained from the information which he examined.

From our perspective, nothing could be better. Our whole position has been: we never sent them and never made the phone calls which the other side says proves that we should be responsible for what came later. If the calls and the emails are not authentic, then my client cannot be held responsible for what happened next.

And this is before we get into our defense.

So all in all, really good day. So what does my client want to do? Does the client want to hammer home and go for the win?

Yeah, if only that were what my client now wants. Essentially, and without going into details, my client wants to surrender.

In the meantime, we get to prepare for the next day of trial: about 2 months from now. Oy gevalt.