There are a lot of sayings out there that warn us against making the same mistake twice:
“The definition of insanity is trying the same thing over and over again, but expecting different results.”
“Don’t bang your head against the wall.”
“Those who fail to learn from history are doomed to repeat it.”
And so on…
Despite this sage advice, many of us continue habit patterns that have been exposed as unhelpful. I am left wondering, why are changes so difficult to make?
A potential example of this comes from a recent verdict against Microsoft in an East Texas courtroom. Two gunslingers met for a rematch over a high-stakes patent case. Douglas Cawley represented the plaintiff (VirnetX), while Matthew Powers (an IP Top Gun) again wore the defense hat for Microsoft. As Zusha Elinson of Law.com writes:
“The two have shown contrasting styles, according to lawyers who have faced them: A tall Texan, Cawley speaks slowly with a slight twang and comes off as a gentleman. Powers has an erudite and sometimes imperious style.”
Less than a year ago, on a different high-dollar patent case against Microsoft, the same two lawyers fought it out in the same courthouse with the same judge. The verdict was once more in favor of Mr. Cawley’s client (a Canadian software company called i4i).
I know few details about these cases, and would never suggest that two instances make a pattern. However, I did see some quotes from jurors who spoke with Joe Mullin of The Prior Art after deciding last year’s battle ( i4i v. Microsoft):
“I expected Microsoft to have done a better job…”
“We all thought if this was that big a deal to Microsoft, they might have had some of their more executive-type people present.”
“It's big business. They just don't care.”
“…if I was Bill Gates, and had $200 million on the line, I would want to be present.”
As Mr. Mullin’s recounts a conversation with one juror:
“…they ‘both seemed really intelligent.’ But… the jury found Cawley ‘much more genuine and sincere.’ Powers…‘came across as being cocky, and kind of always on the defensive about everything. He made several low blows...’”
The first trial’s result hinted that Microsoft was having difficulty connecting with the jurors of East Texas. While it’s true that this venire has often been labeled as a plaintiff’s dream for IP cases, I would be curious to know how much presentation strategy was altered for the VirnetX case as a result of the prior loss.
In honor of Anne Reed’s new position at the Wisconsin Humane Society, I end this inaugural blog post as it began, with a common turn of phrase: "Don't let the tail wag the dog."
Our habit patterns (conscious and subconscious) make life easier and predictable. Without habit patterns, we would have to consciously choose every decision we make. (Is it brush-rinse-spit or brush-spit-rinse?). However, these habit patterns should not become “the tail that wags us” and inhibits us from taking risks and discovering new habit patterns that are even more effective than the old. There is no panacea that will work for every case. Always remember the benefits of “trial and error.”
Thanks Anne, it’s an honor to continue what you began.
Blogger: Matt McCusker
