Saturday, a day early, and exploded when Barnum told him that he would not be testifying first. Steinhardt telephoned Seeley, demanding that he meet him at his home at once, and slammed down the receiver when Seeley said he was too busy with trial preparation to do so. It wasn't until Sunday afternoon, while Seeley was preparing his first witness, Nicolas Cordier, that Steinhardt called again.
“I have decided that if I am not to testify first, I will not testify at all. Without me, there would be no AV/AS.”
This was kid stuff, Seeley thought, and Steinhardt a whining brat. Just to see what Steinhardt's reaction would be, he said, “I can subpoena you as a hostile witness.”
“What purpose could that possibly serve?”
Seeley thought of the question Pearsall had written under his sketch of the scientist. “We can find out what you're hiding.”
“What makes you think I'm hiding something?” There was less rancor in the tone than before.
The first bluff had worked, so Seeley tried a second. “I talked with Lily Warren.”
After a long silence, Steinhardt said, “I have no secrets, and I will demonstrate that when I testify.” This time he did not slam the receiver when he hung up.
Seeley quickly scanned the jury, then glanced at his watch. He had consumed less than the half hour he'd allotted to summarizing Vaxtek's case. He gave himself twenty minutes, no more, to anticipate and undermine St. Gall's case, and five minutes to summarize and close.
“Mr. Thorpe, who is St. Gall's lawyer”-he nodded in the direction of counsel's table where Thorpe sat surrounded by his team, and was pleased to see the jury follow the direction of his gaze-“is going to put on witnesses who will try to tell you that Vaxtek's invention does not rise to the level of novelty that the U. S. Congress, in passing the Patent Act, requires before a patent can issue to an invention. Mr. Thorpe's witnesses are also going to tell you that St. Gall's product is different from AV/AS and, for that reason, doesn't infringe Vaxtek's patent. But we will put on witnesses who will show you that despite superficial differences, St. Gall's product is in fact identical in every relevant respect to Vaxtek's.”
Seeley checked the courtroom. Judge Farnsworth, in a starched white collar with a bright, knotted scarf, but otherwise neutered by the black robes, was following closely. Barnum's hands were clasped across his belly. He looked pleased. Palmieri, head down, was working at the keyboard of his laptop, activity that could distract a jury. Seeley would need to talk to him about that.
“I noticed,” Seeley grinned, “that when I mentioned microbiology some moments ago, a couple of you flinched. You may be asking yourself”-here Seeley lightened his tone and inclined toward the jury box, as if to bring the jurors into his confidence-“if Vaxtek's scientific advance is so significant, how am I going to understand it? Well, I know that if Father Comisky, who tried to teach me high-school biology at St. Boniface Academy thirty years ago, knew I was talking to you about these scientific concepts, he'd turn over in his grave. But I promise you, you're going to hear more from our witnesses about common sense than abstract science, and the science they explain to you will be as clear and colorful as Father Comisky himself would have made it.”
Sansone, whose seat in the jury box was toward the center of the back row, had been watching Seeley intently for several minutes. Alone among the jurors, he didn't smile at the reference to Father Comisky.
It was time to wrap up. “As you listen to the testimony of St. Gall's expert witnesses, you may from time to time feel that you are losing sight of the forest for the trees. St. Gall's witnesses are going to testify over and over again-because, really, this is all they have-that Vaxtek's invention is too obvious to deserve a patent. They will testify that AV/AS was so obvious that any reasonably competent scientist could have invented it.” Here was Seeley's curve ball, the one that always worked. “Now”-he resisted the impulse to raise a finger for emphasis-“when Mr. Thorpe's witnesses, these experts, make this claim, I want you to ask yourself a single question. If AV/AS was so obvious that any competent scientist could have discovered it, why didn't St. Gall, with its 110,000 employees and dozens of laboratories around the world, do it first?”
Seeley took in all their eyes with a glance-for the first time, even the kid seemed impressed-then left the lectern.
At counsel's table, Barnum was beaming. Palmieri was smiling, too, but not as broadly. Behind the gallery rail, Leonard's eyes were glazed with admiration, a look that, even as a boy, Seeley thought would suffocate him.
A gray stooped profile, Thorpe moved slowly across the well of the courtroom to the lectern. When he spoke, it was so softly that the jurors in the second row-all but the kid-had to lean forward to hear him. Twice the court reporter asked him to repeat himself. Thorpe could have been sleepwalking, enveloped in a languor so profound that it threatened to silence him completely.
Seeley strained to hear as Thorpe unfolded the theory of St. Gall's defense. “Do you think that a company of St. Gall's size and reputation would undertake to produce an important pharmaceutical without first satisfying itself that the product infringed no valid patent?” Turning Seeley's theme of David against Goliath on its head, Thorpe was making St. Gall's size a mark of virtue. Big business should be trusted.
“Companies like St. Gall flee from patent infringement the way you would flee from a charging bull. St. Gall has in its files opinion letters from three leading law firms, each stating that AV/AS was an obvious, even trivial advance and, even if a jury were mistakenly to find the patent to be valid, that St. Gall's product does not infringe this patent. My client obtained analyses from the most expert university scientists around the world confirming that its product does not infringe. Do you imagine that a company of St. Gall's size and reputation would have done any less?”
As Seeley anticipated, Thorpe then teased out from his theory that big is good a second conclusion to reinforce the first. Thorpe looked directly at the jurors, but his voice remained subdued.
“If your life, or the life of someone you truly loved, depended on it, whose judgment would you follow: that of a lone, underpaid and overworked bureaucrat in the U. S. Patent Office, or the judgment concurred in by the world's leading researchers in the relevant field-the scientific experts that physicians themselves consult when they need answers to the hardest life-and-death questions-a judgment reached in each case independently and dispassionately.”
Seeley smiled to himself. As dispassionate as you can be when you are being paid handsomely for that judgment. On his legal pad, Seeley wrote a note to hit this fact hard when his time came to cross-examine St. Gall's expert witnesses.
Thorpe jammed his hands into the pockets of his suit jacket, silently studying the jurors one by one. Then he let his voice drop into the quietest whisper yet and concluded his opening statement.
“He's lost it,” Barnum said, his breath damp against Seeley's ear. “How can he expect a jury to believe in his case if he doesn't believe in it himself?”
“Puzzling,” was all that Palmieri said, snapping his laptop shut.
But Seeley knew that Thorpe's fecklessness was a ruse. This was the same man who last week dashed across the courthouse plaza to proclaim to the television cameras the certainty of his client's victory. But, if he was acting, what was the point? Was the purpose of the charade to get a jury that would not sympathize with a multinational drug company to identify with him instead? Pity me; pity my client. Had Thorpe, with decades of practice in San Francisco, misjudged the jury, or had Seeley?
TWELVE
On the witness stand, Dr. Nicolas Cordier was a portrait of rectitude: thin, almost cadaverous, he sat erect against the back of the leather chair, one long leg crossed elegantly over the other, hands loosely clasped on a knee. He could have been waiting for his introduction as the keynote speaker at a medical society meeting and not for his first appearance as an expert witness in a patent infringement trial. The plain navy suit, white button-down shirt, and old-fashioned plaid tie went with the gray hair cut short at the sides, longer on top. As Seeley walked to the lectern to begin his direct examination, Cordier brushed a recalcitrant lock back from his forehead.
Sunday's preparation had been trying. “What do you want me to say?” Cordier asked as Seeley put practice questions to him. “The truth.” Seeley had seen this before. A witness, rigorously honest in all aspects of his life, is suddenly daunted by the novel prospect of testifying in court. The physician shrugged. “Of course, the truth, but
