Amicus Brief — Gant v. Union Bank

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

—* 79-1388

RICHARD A. GANT, et al.,

Petitioners,

V.

UNION BANK, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION OF INTERNATIONAL BUSINESS MACHINES

CORPORATION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI AND BRIEF

OF AMICUS CURIAE

Of Counsel: JAMES S. CAMPBELL

ALAN N. BRAVERMAN

ANDREW N. VOLLMER

WILMER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Counsel for Amicus Curiae

International Business

Machines Corporation

NICHOLAS DEB. KATZENBACH

International Business

Machines Corporation

Armonk, New York 10504

CRAVATH, SWAINE & MOORE

One Chase Manhat‘an Plaza

New York, New York 10005

March 10, 1980

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

RICHARD A. GANT, et al.,

Petitioners,

v.

UNION BANK, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION OF INTERNATIONAL BUSINESS MACHINES

CORPORATION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

International Business Machines Corporation

(“IBM”) respectfully moves the Court for leave to file

the attached brief as amicus curiae supporting the

petition for a writ of certiorari to the United States

Court of Appeals for the Ninth Circuit. Counsel for

the petitioners has consented to the filing of the at-

INDEX

tached brief. IBM was unable to obtain consent from Page

counsel for the respondents. VNR Be Whi. : |. - eee nee cenmti ne ii

The interest of IBM as an amicus is set forth at INTEREST OF AMICUS CURIAB ..00.0.....-c-csccceceeeeeeeoeee

pages 2-3 of the attached brief. The Shag _dis- REASONS FOR GRANTING THE WRIT -ccccccccc---

cusses the adverse practical effects of the decision va

: : ‘ ° I. The Decision in U.S. Financial has Far-

sought to be reviewed, its historical eels ene Reaching, Adverse Implications for the Admin-

the Seventh Amendment, and its misplaced concern letration of Jeition in Ga tees tak. 3

over the ability of courts to develop appropriate ;

standards for identifying those extraordinarily com- A. ee ee nancies nice ‘

plex cases for which jury trials are unsuitable. These Pearle he

are matters that the petitioner does not fully present B. Trying Extraordinarily Complex Cases to a

; Jury Places Enormous and Unnecessary

and that further demonstrate the importance of the Burdens on the Judicial System .................... 7

i i the petition.

question raised by pe C. Extraordinarily Complex Cases Are Forcing

. Fundamental Alterations in the Institution

Respectfully submitted, ft ee ee 9

II. From the Time the Seventh Amendment Was

Adopted Until the Decision in U.S. Financial

: MES S. CAMPBELL ,

Of Counsel: pod Paha the Practical Abilities and Limitations of Juries

NICHOLAS DEB. KATZENBACH ANDREW N. VOLLMER Have Been a Consideration in Determining

International Business : Whether a Case Is Triable as of Right to a

2 ; WILMER & PICKERING

Machines Corporation GONE ainceincasiinsitincosnicihiiepatstlins sping eee 12

Armonk, New York 10504 1666 K Street, N.W.

puasecetatad Washington, D.C. 20006 III. Those Few Cases of Such Complexity as To Be

CRAVATH, SWAINE & MOORE . . Beyond the Practical Abilities and Limitations

’ l A C

One Chase Manhattan Plaza — be no garg of a Jury Can Be Identified ...............................- 14

k. New York 10005 International Business

New York, New Yor: Machines Corporation CORRS oe ae ie a oe 16

Pig y . | i Gene Site tee A la

March 10, 1980

MEER, OF ccccnctsidahaken snesiilalihnateeiiaaaeniteaiad 10a

ii

TABLE OF AUTHORITIES

Cases

Atlas Roofing Co. v. Occupational Safety & Health

Review Commission, 430 U.S. 442 (1977) .........-

Barker v. Wingo, 407 U.S. 514 (1972) ..................--

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

CRO ai iiicsckiesiechas wadek henncedslainctienaligaielicdiponmediden

Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d

268 (2d Cir. 1979), cert. denied, 48 U.S.L.W.

SET CI, BE. ID anscinscs aster

In re Boise Cascade Securities Litigation, 420 F.

Sem; OD CWT. WRG. LOG) Wn. nasi cc ese cecitnsasoeies

California Computer Products, Inc. v. IBM Corp.,

[1979-1] Trade Cas. { 62,713 (9th Cir. June 21,

| EARLS ES ICTS Aces eaten ne

Citron v. Aro Corp., 8377 F.2d 750 (3d Cir.), cert.

denied, 889 U.S. 978 (1967) ....................------------

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962)...

Forro Precision, Inc. v. IBM Corp., Civ. No. 74-

1653 (N.D. Cal. 1977), appeals docketed, Nos.

78-1455, 78-1755 (9th Cir. Mar. 1 and Apr. 7,

ROWS: 2 ee eerie.

Fuentes v. Shevin, 407 U.S. 67 (1972) ...................-

Greenholtz v. Inmates of the Nebraska Penal &

Correctional Complex, 442 U.S. 1, 47 U.S.L.W.

rs GG. | EEDA eatin ch A ey eereea rae SS RE

Greyhound Computer Corp. v. IBM Corp., No.

Civ. 72-242-PHX-WPC (D. Ariz., filed Oct. 20,

|__| Nag ARDS et PAE RSS RE Sa ee SEE Re A RAR on

Greyhound Computer Corp. v. IBM Corp., [1972]

Trade Cas. 974,205 (D. Ariz. 1972), rev’d in

part and remanded, 559 F.2d 488 (Sih Cir.

1977), cert. denied, 434 U.S. 1040 (1978) ..........

ILC Peripherals Leasing Corp. v. IBM Corp., 458

F. Supp. 423 (N.D. Cal. 1978), appeal pending

sub nom. Memorex Corp. v. IBM Corp., Nos.

78-8050, 78-3236 (9th Cir., docketed Sept. 12

a I I ia ic sche nan aabieenelae vem nennicms

Katchen v. Landy, 382 U.S. 328 (1966) -...............

Mathews v. Eldridge, 424 U.S. 319 (1976) ............

Page

10

14

>

iii

TABLE OF AUTHORITIES—Continued

Page

MCI Communications Corp. v. AT&T Co., No. 74

© GD CIR Ad. TE, Tei Be, TG accrerevcseeieeee 10

Memorex Corp. v. IBM Corp., Nos. 78-3050, 78-

3236 (9th Cir., docketed Sept. 12 and Oct. 6,

1978), appealing ILC Peripherals Leasing Corp.

v. IBM Corp., 458 F. Supp. 423 (N.D. Cal.

RRR RNC Gri eo Aa We gs Reis (CS Ah 2

Nyyssonen v. Bendix Corp., 342 F.2d 531 (1st

Cir.), cert. denied, 382 U.S. 847 (1965) ............ 6

Parsons v. Bedford, 28 U.S. (8 Pet.) 266 (1830).. 12

Ross v. Bernhard, 396 U.S. 581 (1970) 0.000... 13

SCM Corp. v. Xerox Corp., 463 F. Supp. 983 (D.

Conn. 1978), remanded on other grounds, 599

Be PS PI oeteencsscepcssisainsnencetasiaralectatiaciene 8

Transamerica Computer Co. v. IBM Corp., [1979-

2] Trade Cas. {62,989 (N.D. Cal. Oct. 18,

1979), appeal docketed, No. 80-4048 (9th Cir.

Pe Sia MEDS, jctitdincndidsdentnoloicatiniacersbianammditat ad dce 4

United States v. United States Gypsum Co., 488

FM | RO a Oe re 9

United States v. Wonson, 28 F. Cas. 745 (C.C.D.

a 12

In re U.S. Financial Securities Litigation, 609 F.2d °

a er I he rs er passim

Zenith Radio Corp. v. Matsushita Elec. Indus. Co.,

Civ. A. No. 74-2451 (E.D. Pa. July 11, 1979) ....... 8

Statutes and Federal Rules

I Ee | | . ) ean 2

ie cc Og ERE TES ne CTS 15

Miscellaneous Authorities

Administrative Office of the U.S. Courts, Annual

Report of the Director (1970, 1977-79) ............ 7,15

Blum, AT&T Jurors Find a Little Knowledge Is

a Difficult Thing, Wall St. J., Feb. 26, 1980

5 Ef, Breit sate ae

iv

TABLE OF AUTHORITIES—Continued

P. Devlin, Note on the Suit at Common Law in

England at the Time of the Seventh Amendment

CRE CE RII eciecs serene Seseetihpneeninenbhaainonigiries

N. Gage & D. Berliner, Education Psychology

II ie ccstoe occiciedoeestdien is oselaghonebntics eh thcnapacetaiinso

Harris & Liberman, Can The Jury Survive the

Complex Antitrust Case?, 24 N.Y.L. Sch. L. Rev.

I i seceahiabiaippinerieiniens

McLeish, The Lecture Method, in The Psychology

of Teaching Methods (W. Van Til ed. 1976) ......

Note, The Right to a Jury Trial in Complex Civil

Litigation, 92 Harv. L. Rev. 898 (1979) -...........

Page

13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

RICHARD A. GANT, et al.,

Petitioners,

V.

UNION BANK, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE INTERNATIONAL

BUSINESS MACHINES CORPORATION IN

SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

International Business Machines Corporation

(“IBM”) submits this brief as amicus curiae in sup-

port of the petition for a writ of certiorari to review

the decision of the United States Court of Appeals

for the Ninth Circuit. That decision is reprinted

in the appendices to the petition and is reported at

609 F.2d 411.

2

INTEREST OF AMICUS CURIAE

Petitioner seeks a writ of certiorari from this Court

to review a decision of the United States Court of

Appeals for the Ninth Circuit. In re U.S. Financial

Securities Litigation, 609 F.2d 411 (9th Cir. Dec. 10,

1979). In U.S. Financial, the Ninth Circuit decided

that a federal district court has no authority to strike

a jury demand in an extraordinarily complex civil

case, even though the court has concluded that a jury

would be incapable of understanding and deciding

rationally the issues in the case. In reaching this

result, the Ninth Circuit asserted that no “case is

so overwhelmingly complex that it is beyond the abili-

ties of a jury.” Id. at 482.

IBM, a manufacturer of electronic data process-

ing equipment, is a party to a number of extraor-

dinarily complex civil cases pending in the Ninth

Circuit.’ In Greyhound Computer Corp. v. IBM Corp.,

IBM moved to strike the plaintiff’s jury demand on

the ground that the case was so complex that a jury

would be unable to understand and decide it. On

November 6, 1979, the trial judge denied the motion

“for lack of authority” but certified his decision for

interlocutory review under 28 U.S.C. § 1292(b). On

February 1, 1980, the Ninth Circuit denied permis-

sion to appeal because “[t]he issue of law raised by

the petition has been definitively resolved in this cir-

1F.g., Memorex Corp. v. IBM Corp., Nos. 78-3050, 78-3236

(9th Cir., docketed Sept. 12 and Oct. 6, 1978), appealing ILC

Peripherals Leasing Corp. v. IBM Corp., 458 F. Supp. 423

(N.D. Cal. 1978) (“Memorex’’) ; Greyhound Computer Corp.

v. IBM Corp., No. Civ. 72-242-PHX-WPC (D. Ariz., filed

Oct. 20, 1969) (“Greyhound”).

3

cuit” by the U.S. Financial decision. Accordingly,

IBM has an interest in this Court’s review of U.S.

Financial.*

REASONS FOR GRANTING THE WRIT

In squarely deciding for the first time at an appel-

late level that extraord!uary complexity is not a basis

for withholding a civil case from a jury, the court

below committed error of far-reaching practical con-

sequences for the administration of justice in the

federal courts. As the complexity, number, and dura-

tion of protracted cases increase, courts will increas-

ingly be burdened by the failures of juries to cope

with them, and litigants will increasingly be de-

prived of accurate, reliable adjudications. The re-

sult reached below is, moreover, inconsistent with the

lessons of history and the teachings of this Court. It

should be repudiated promptly.

I. THE DECISION IN U.S. FINANCIAL HAS FAR-

REACHING, ADVERSE IMPLICATIONS FOR THE

ADMINISTRATION OF JUSTICE IN THE FED-

ERAL COURTS.

The Ninth Circuit’s failure to recognize that no

jury trial right exists in cases exceeding the practical

abilities and limitations of a jury will have far-

reaching adverse implications for the administration

of justice. Trying extraordinarily complex cases to a

jury is inconsistent with the requirements of due

process, places enormous unnecessary burdens on the

2 Concurrently with the filing of this amicus brief, IBM is

also petitioning for a writ of certiorari to review the Ninth

Circuit’s decision in Greyhound.

4

judicial system, and threatens to force fundamental

alterations in jury trial procedure.

A. Trial to an Uncomprehending Jury

Violates Due Process.

The constitutional requirement of due process is

intended to ensure the use of adjudicatory procedures

that will minimize the risk of an erroneous depriva-

tion of a property interest. See Greenholtz v. Inmates

of the Nebraska Penal & Correctional Complex, 442

US. 1, —, 47 U.S.L.W. 4581, 4584 (1979); Mathews

v. Eldridge, 424 U.S. 319, 3385 (1976); Fuentes »v.

Shevin, 407 U.S. 67, 81 (1972). Decisional accuracy

in adjudications can be reliably achieved, in accord-

ance with the mandate of the Due Process Clause,

only when decisions are based on an understanding

of the evidence and the applicable law. When a jury

is not capable of understanding the issues involved

in a lawsuit, it is manifestly unsuited to perform the

decisionmaking function.

IBM’s experience in three extraordinarily complex

cases tried in the Ninth Circuit—all of which resulted

in hung juries on antitrust issues "—demonstrates the

8 ILC Peripherals Leasing Corp. v. IBM Corp., 458 F. Supp.

423 (N.D. Cal. 1978), appeal pending sub nom. Memorex

Corp. v. IBM Corp., Nos. 78-3050, 78-3236 (9th Cir., docketed

Sept. 12 and Oct. 6, 1978) (“Memorex”) (89 trial days) ;

Transamerica Computer Co. v. IBM Corp., [1979-2] Trade

Cas. { 62,989 (N.D. Cal. Oct. 18, 1979), appeal docketed, No.

80-4048 (9th Cir. Jan. 31, 1980) (123 days) ; Forro Precision,

Inc. v. IBM Corp., Civ. No. 74-1653 (N.D. Cal. 1977), appeals

docketed, Nos. 78-1455, 78-1755 (9th Cir. Mar. 1 and Apr. 7,

1978) (22 trial days).

In two other jury trial cases against IBM, the trial judges

_ entered directed verdicts for IBM at the close of plaintiffs’

cases. See California Computer Prods., Inc. v. IBM Corp.,

5

threat to due process in trying such cases to juries

and the need to try them to judges instead. One of

those cases, Memorex, provided an especially instruc-

tive glimpse into a jury’s inability to decide such

cases. After the jurors were unable to reach a deci-

sion, the judge questioned them about the case. The

responses of the jurors show how baffled they were

by the Memorex case and, no doubt, how confused the

other juries were as well.* Comparing the jurors’

bewildered responses, set forth in Appendix A here-

to, with the reasoned opinions of the trial judges

in Transamerica and Memorex, one can have no doubt

that bench trial is superior to jury trial in an extra-

ordinarily complex case.

In extraordinarily complex cases judges can meet

the demands of due process, though juries cannot,

because judges have many procedures and resources

available to them that are unavailable to juries. Be-

sides the immense advantage of their legal training

and experience in dealing with complicated factual

- issues, judges can utilize many practical aids that

are not available to a jury. For example, judges

can review daily transcripts, admit depositions into

evidence instead of having portions read aloud, call

[1979-1] Trade Cas. 62,713 (9th Cir. June 21, 1979) (58

trial days) ; Greyhound Computer Corp. v. IBM Corp., [1972]

Trade Cas. {74,205 (D. Ariz. 1972), rev’d in part and re-

manded, 559 F.2d 488 (9th Cir. 1977), cert. denied, 434 U.S.

1040 (1978) (25 trial days).

* Appendix A to this brief describes the Memorex case

more fully and details the jurors’ failure to understand the

case.

6

or recall and question witnesses, and request supple-

mental briefs and arguments during or after the

trial.° They can call for proposed findings of fact and

conclusions of law from counsel for the parties.°

Judges can take the time to understand and decide a

complex case without the pressure to return to their

normal job or way of life. They can read, reflect,

and learn in a‘ way that a jury cannot and was

never intended to do.” Finally, judges in complex

cases proceed through the disciplining exercise of

producing written findings of fact and conclusions of

law,* which a higher court can review for consistency

and accuracy.

5 See In re Boise Cascade Securities Litigation, 420 F.

Supp. 99, 104-05 (W.D. Wash. 1976); Harris & Liberman,

Can the Jury Survive the Complex Antitrust Case?, 24 N.Y.L.

Sch. L. Rev. 611, 622 n.52, 623 (1979); Note, The Right to

a Jury Trial in Complex Civil Litigation, 92 Harv. L. Rev.

898, 917 (1979).

8 See Nyyssonen v. Bendix Corp., 342 F.2d 531, 532-33

(1st Cir.), cert. denied, 382 U.S. 847 (1965).

7™One does not “demean[ ] the intelligence of the citizens

of this Nation,” In re U.S. Financial Securities Litigation,

609 F.2d at 430, by pointing out that prevailing jury trial

procedures prevent jurors from acquiring the understanding

of extraordinarily complex factual and legal material neces-

sary for rational decisionmaking. Research undertaken in the

field of cognitive psychology has indicated that an individual

will be severely disabled from comprehending materials if,

as under prevailing jury practice, the person supposedly gain-

ing an understanding of the material is deprived of* active

interplay in the learning process. See, e.g., N. Gage & D.

Berliner, Education Psychology 151 (1975); McLeish, The

Lecture Method, in The Psychology of Teaching Methods

252-301 (W. Van Til ed. 1976).

8 See Fed. R. Civ. P. 52(a).

7

B. Trying Extraordinarily Complex Cases to a Jury

Places Enormous and Unnecessary Burdens on the

Judicial System.

The Ninth Circuit’s decision in U.S. Financial,

allowing a litigant to insist. upon a jury trial with-

out regard to the complexity of the case, its length,

or how many times it must be retried, imposes enor-

mous burdens on the courts, on jurors, and on the

opposing parties. As the number and duration of

protracted cases has increased, so have these burdens.

In 1970, 32 federal civil trials lasting 20 days or

more required a total of 1,017 trial days; by 1979,

the number of cases requiring 20 or more days to

try had grown to 57, and the total number of trial

days involved was 1,972.°

The submission of an extraordinarily complex case

to a jury that in all likelihood will be too confused to

reach a decision is a futile act that needlessly mag-

nifies the burdens that complex litigation imposes

on the courts and litigants. Judge Conti made just

this point after the Memorex jury hung:

The trial of this case occupied the time of the

court and its staff almost exclusively for seven

months. Because of the estimated length of the

trial, the court went off the new case assign-

ment wheel for its duration, thereby increasing

the workload of other courts and personnel of the

Northern District. In addition, the jury expenses

(borne by the government in this case) amounted

to more than $32,000. All of this time and ex-

pense went for naught when the court was forced

to declare a mistrial.

® Administrative Office of the U.S. Courts, Report of the

Director, Tables C-8, C-9 (1970, 1979).

8

When a trial is by jury rather than to the

court, there is the possibility that no decision

will be made.

Memorex, 458 F. Supp. at 448 (emphasis added).”

Similarly, when trial is to a jury and the judge com-

mits reversible error in an instruction or in an evi-

dentiary decision (the likelihood of which increases

with the length and complexity of the trial"), the

trial goes for naught, requiring another costly and

protracted trial.”

10 In the course of the three IBM cases in which the juries

hung, 230 trial days were consumed.

11 Recently, one district court judge, facing a year-long trial

of a complex antitrust case, candidly observed, “[there is] no

way I can avoid making error on this case.” Zenith Radio

Corp. v. Matsushita Elec. Indus. Co., Civ. A. No. 74-2451,

at 21 (E.D. Pa. July 11, 1979) (transcript of pretrial hear-

ing).

12 Thus, at the end of a recent antitrust jury trial lasting

some fourteen months, one district judge made the following

request:

If the Court of Appeals should conclude that any issue

of fact necessary for decision of any issue of law in this

case was submitted to the jury under a prejudicially

incorrect legal standard or was otherwise improperly

determined, it is respectfully suggested that the Court

consider the appropriateness of subsequent district court

fact-finding on such issue, without a jury, either on the

present record, or with such additions or deletions as the

Court of Appeals may order in light of its consideration

of evidentiary rulings.

SCM Corp. v. Xerox Corp., 463 F. Supp. 983, 1021 n.53 (D.

Conn. 1978), remanded on other grounds, 599 F.2d 32 (2d Cir.

1979). See also Berkey Photo, Inc. v. Eastman Kodak Co.,

6038 F.2d 263, 268, 305 (2d Cir. 1979), cert. denied, 48

9

The effect on the jurors themselves of being asked

to spend months listening to evidence, and then de-

ciding these extraordinarily complex cases, is a fur-

ther consideration that the courts should not over-

look. The jury system is often seen as a contribution

to the legitimacy of courts and a way to enhance the

public’s sense of participation in the legal system.

When, however, jurors are required to undertake the

serious public duty of resolving a major dispute that,

as it turns out, they cannot adequately comprehend,

jury service becomes a traumatic experience that can

only heighten the distrust and anxiety that lay people

have about the judicial process. See United States v.

Umted States Gypsum Co., 4388 U.S. 422, 465-69

(1978) (in a complex and protracted criminal anti-

trust case, jury foreman reporteu to the judge that

the deadlocked jurors were “distraught” and that one

juror threatened “to jump out the window”).

C. Extraordinarily Complex Cases Are Forcing Fun-

damental Alterations in the Institution of the Civil

Jury. ;

The U.S. Financial decision deprives district courts

of authority to withhold an extraordinarily complex

case from a jury. Trial judges, in an effort to pre-

serve due process ard to protect the orderly dispatch

of judicial business, will naturally experiment with

novel modifications of traditional jury trial procedure

in an attempt to make extraordinarily complex cases

more manageable and more comprehensible to jurors.

U.S.L.W. 3517 (Feb. 19, 1980) (in a jury case of “daunt-

ing complexity,” the reviewing court repeatedly urged that

“where we have directed a new trial, we hope the parties will

find another means of disposition’’).

10

In Memorex, for example, the judge permitted the

parties to deliver an introductory lecture on com-

puters to the jurors; instructed the jury on the law

before the trial; permitted the jurors to take notes;

and placed the transcripts, exhibits and final argu-

ment, which was annotated to the evidence, in the

jury room. Similarly, in Transamerica the judge in-

structed the jury on the law before trial, permitted

the jurors to take notes, and permitted the jurors

during the trial to write out questions they had, which

were then given to the lawyers for such response as

they deemed appropriate. As mentioned, in both

eases the juries were still baffled and unable to reach

a decision.

In the recently-commenced MCI-AT&T antitrust

trial, Judge Grady is experimenting with several

other innovations. He has restricted, to a total of a

little over 100 trial days, the amount of time avail-

able for presentation of plaintiff’s and defendant’s

direct evidence and for cross-examination. MCI Com-

munications Corp. v. AT&T Co., No. 74 C 683 (N.D.

Ill. Nov. 28, 1979) (pretrial order). The trial will

go forward in stages, one month at a time, recessing

periodically to permit the jurors to return to their

normal lives for awhile and to permit the judge to

try other cases.* Jd. First reports on the jurors’

18 Whether such recesses are consistent with due process

is questionable. In Citron v. Aro Corp., 377 F.2d 750 (3d

Cir.), cert. denied, 389 U.S. 973 (1967), the court reversed

and remanded a case for a new trial because several recesses

during the trial, including one of two weeks between plain-

tiff’s and defendant’s cases, created the possibility that the

_ jury was unable adequately to remember plaintiff’s case.

11

comprehension of this complex antitrust case are as

discouraging as one might expect: “After three weeks

of hearing testimony, they look tired and confused.”

Blum, AT&T Jurors Find a Little Knowledge Is a

Difficult Thing, Wall St. J., Feb. 26, 1980, at 18, col.

3 (Eastern ed.). This article, which describes the

complexity of the MCI-AT&T litigation and the jur-

ors’ initial reactions to the case, is reprinted as

Appendix B to this brief.

As judges modify traditional jury trial procedures

in an attempt to assist jurors in understanding ex-

traordinarily complex cases, the jury increasingly loses

its resemblance to the decisionmaking body envisioned

by the Seventh Amendment. We are seeing some-

thing new as we observe juries with volumes of evi-

dence, annotated closing arguments, notebooks, peri-

odie instructions on the law, and lengthy recesses in

the course of a trial lasting many months. The trad-

ditional Seventh Amendment jury was a body of

citizens who sat continuously from the beginning of

_ trial to the end, listened only to the evidence pre-

sented by the parties, and then, applying the law

in light of their common sense and experience in the

practical affairs of life, reached a swift, unanimous

decision.

Attempts to convert the traditional Seventh Amend-

ment jury into a kind of ongoing committee of in-

quiry, a novel ad hoc administrative agency, are a

necessary consequence of the view that courts are

without authority to order bench trial of extraordi-

narily complex cases. This inevitable result of the

U.S. Financial decision should be borne in mind by

the Court in deciding whether to grant review of the

decision below.

12

II. FROM THE TIME THE SEVENTH AMENDMENT

WAS ADOPTED UNTIL THE DECISION IN USS.

FINANCIAL, THE PRACTICAL ABILITIES AND

LIMITATIONS OF JURIES HAVE BEEN A CON-

SIDERATION IN DETERMINING WHETHER A

CASE IS TRIABLE AS OF RIGHT TO A JURY.

In U.S. Financial, the Ninth Circuit refused to

consider the practical abilities and limitations of

juries as a factor in deciding whether the Seventh

Amendment requires an extraordinarily complex case

to be tried to a jury. It concluded that considera-

tion of jury capabilities would be contrary to the

intent of the Framers of the Seventh Amendment

and “a radical departure” from prior interpretations

of that constitutional provision. Jn re U.S. Financial

Securities Litigation, 609 F.2d at 425. To the con-

trary, the “‘radical departure” from Seventh Amend-

ment jurisprudence is the Ninth Circuit’s directive

that trial courts may not consider the ability of a

jury to understand and decide a case accurately.

The Framers of the Seventh Amendment, in pref-

acing that provision with the words “In Suits at com-

mon law,” plainly did not intend to extend the use

of juries to proceedings in equity. See, e.g., Parsons

v. Bedford, 28 U.S. (8 Pet.) 266, 275 (1830).

Equally clear, from the legislative history of the

Amendment and from early decisions construing it,

see, e.g., United States v. Wonson, 28 F. Cas. 745,

750 (C.C.D. Mass. 1812) (Story, J.), is that the

Framers intended to incorporate into the Amend-

ment the distinction between suits at common law

and proceedings in equity as that distinction was

made in England in 1791.

The English practice in 1791 was to try complex

eases in equity, without a jury, not at law with a

13

jury. Lord Devlin, a Lord of Appeal of England

and a recognized authority on the use of the jury in

English law, at the request of counsel for IBM, ex-

tensively researched the English disposition of ex-

traordinarily complex cases at the time of the acop-

tion of the Seventh Amendment. He has demon-

strated that the Chancellors of the period, who con-

trolled the allocation of cases between the law courts

and the court of equity, would not allow a case be-

yond the practical abilities and limitations of a jury

to be tried in the law courts before a jury. Equity

would take jurisdiction over such complex matters

even though the action requested legal relief and was

one typically heard in the law courts. The principle

upon which the Chancellors acted is one that both

English and American courts have used for centuries

to determine the bounds of equity: Equity will take

jurisdiction whenever the procedures of the law courts

—including the procedure of jury trial—are inade-

quate to do justice in the case.

That principle retains its vitality in the federal

courts today. This Court has consistently used the

principle of inadequacy of legal procedures, specifi-

cally the adequacy or inadequacy of the jury. trial

procedure, in delineating the scope of the Seventh

Amendment. Contrary to the ruling in U.S. Finan-

cial, the reference in Ross v. Bernhard, 396 U.S. 531,

538 n.10 (1970), to “‘the practical abilities and limi-

tations of juries” was not “a radical departure” from

14 Lord Devlin’s work, currently available as a privately

published monograph, is titled ‘““Note on the Suit at Common

Law in England at the Time of the Seventh Amendment

(1791).” Lord Devlin’s Note has been accepted for publication

in a forthcoming issue of the Columbia Law Review.

14

established Seventh Amendment practice. It was

merely a formulation of well-established equitable

doctrine consistently utilized by this Court in Seventh

Amendment analysis. See Atlas Roofing Co. v. Oc-

cupational Safety & Health Review Commission, 4380

U.S. 442, 454-61 (1977); Katchen v. Landy, 382

U.S. 328, 389 (1966); Dairy Queen, Inc. v. Wood,

369 U.S. 469, 478-79 (1962); Beacon Theatres, Inc.

v. Westover, 359 U.S. 500, 507-11 (1959).

Ill. THOSE FEW CASES OF SUCH COMPLEXITY AS

TO BE BEYOND THE PRACTICAL ABILITIES

AND LIMITATIONS OF A JURY CAN BE

IDENTIFIED.

The U.S. Financial court sought to justify its de-

cision by raising doubts as to whether courts can

“draw the line between those cases which are, and

those which are not, too complex for a jury.” 609

F.2d at 431. Deciding whether a case exceeds the

practical abilities and limitations of a jury is, how-

ever, a practical task that judges readily can per-

form. The exercise will be quite similar to the bal-

ancing process mandated by this Court for deter-

mining whether a criminal defendant has been de-

nied the right to a speedy trial. See Barker v. Wingo,

407 U.S. 514 (1972). There the Court, refusing to

adopt rigid rules, told lower courts to decide each

case “on an ad hoc basis,” id. at 530, weighing four

factors identified by the Court. Jd. at 530-33. .

In separating the extraordinarily complex cases

from the merely complex, the first consideration

should be the overall dimensions of the trial. The

sheer size of a proceeding obviously affects a juror’s

ability to absorb, understand, and remember the evi-

15

dence presented at trial. A simple and useful indi-

cator of the overall dimensions of a case is the antici-

pated length of the trial. Trials expected to take more

than, say, one month necessarily raise a serious ques-

tion as to whether they exceed the practical abilities

and limitations of a jury.”

The second factor to be weighed by a court, in

ruling on 2 motion to strike a jury on grounds of

extraordinary complexity, is the nature of the evi-

dence proposed to be introduced. The jury functions

best when the jurors are apt to be familiar with the

subject matter of the lawsuit and thus with the

content of the evidence introduced. The intricacies

of corporate financial decisions or accounting, for

example, like the design and use of sophisticated data

processing equipment, are subjects with which ordi-

nary jurors are unlikely to be familiar. The antici-

pated number of witnesses with “scientific, tech-

nical, or other specialized knowledge,” see Fed. R.

Evid. 702, is a good indicator of the difficulty of the

-evidence proposed to be introduced at trial.

A third consideration is the conceptual difficulty of

the law to be applied. Many antitrust cases, for ex-

ample, require understanding and application of dif-

ficult legal standards with which jurors are wholly

15 Statistics collected by the Administrative Office of the

U.S. Courts show that in 1977, 1978, and 1979, 29, 24 and

31 jury trials, respectively, lasted 2U days or more, less than

1% of all civil jury trials. For the same years, 17, 15

and 11 civil jury trials lasted 25 days or more. Of those civil

jury trials lasting 25 days or more, slightly less than half were

antitrust and securities cases. Administrative Office of the

U.S. Courts, Report of the Director, Tables C-8, C-9 (1977-

79).

ul

‘

{

?

16

unfamiliar. The antitrust laws incorporate concepts

from economic analysis, such as market power or

cross-elasticity of supply and demand, that exceed the

grasp of ordinary citizens. The length and difficulty

of the necessary jury instructions—which in extraor-

dinarily complex: cases sometimes run to a hundred

pages or more—will be a good objective indication of

the legal complexity.

Balancing the considerations set out above, trial

judges can be expected to apply the Ross test to pro-

tect and harmonize both the parties’ right to a jury

trial in an ordinary legal action and their right to

an accurate and reliable decisionmaking process in

even the most complicated commercial litigation. The

fears of the U.S. Financial majority that courts can-

not “draw the line” are entirely unfounded.

CONCLUSION

IBM respectfully requests that the Court issue a

writ of certiorari to review the decision of the United

States Court of Appeals for the Ninth Circuit..

Respectfully submitted,

Of Counsel: JAMES S. CAMPBELL

NICHOLAS DEB. KATZENBACH ALAN N. BRAVERMAN

ANDREW N. VOLLMER

International Business Wise & Pac a

Machines Corporation KERI

Armonk, New York 10504 1666 K Street, N.W.

Washington, D.C. 20006

CRAVATH, SWAINE & MOORE C ' é

One Chase Manhattan Plaza ‘hee ast a oe

New York, New York 10005 Machi aye maces

March 10, 1980

la

APPENDIX A

THE JURY IN ILC PERIPHERALS LEASING CORP.

v. IBM CORP. FAILED TO COMPREHEND THE

COMPLEX TECHNOLOGICAL, FINANCIAL, AND

ECONOMIC ISSUES INVOLVED IN THAT CASE

Following a 96-day antitrust trial that investigated

“the computer industry in the United States from 1964

through the mid-1970’s,” Memorex Br., p. 7,’ the jury in

ILC Peripherals Leasing Corp. v. IBM Corp., could not

decide the issues of monopolization and attempted mo-

nopolization presented by 19,000 pages of transcript,

2,300 exhibits, and 83 pages of jury instructions. After

declaring a mistrial, the District Court gave further con-

sideration to IBM’s motion to strike Memorex’s jury de-

mand and ordered that, in the event of a retrial, the

demand be struck. ILC Peripherals Leasing Corp. v.

IBM Corp., 458 F. Supp. 428, 448 (N.D. Cal. 1978).

The court, based on its familiarity with the case and

its observations during the trial, concluded that “the

magnitude and complexity of the present lawsuit render

it, as a whole, beyond the ability and competency of any

jury to understand and decide rationally.” Id.

Memorex’s case against IBM was founded on a variety

of complaints about IBM’s development, pricing, and mar-

keting, over a ten-year period, of modern electronic data

processing systems and certain peripheral devices in-

cluded within these systems. Memorex claimed IBM in-

troduced new products “with no technological justifica-

tion,” Memorex Br., p. 17, lowered prices beyond “legiti-

mate competitive price reductions,” id. at 16, and an-

1 Citations to “Memorex Br.” are to Appellant’s Opening Brief in

Memorex Corp. v. IBM Corp., Nos. 78-3050, 78-3236 (9th Cir., ap-

peals docketed September 12 and October 6, 1978); citations to

“Tr.” are to the transcripts of the trial; citations to “CR” are to

the Clerk’s Record on Appeal.

2a

nounced prematurely “the introduction of new technology”

so as to “freeze entire markets at the critical stages

of development and marketing.” Jd. at 18. As the dis-

trict court observed, “[rJesolution of these issues re-

quired an understanding of a vast amount of advanced

computer technology and sophisticated financial princi-

ples.” 458 F. Supp. at 444.

Besides being asked to grapple with technological and

financial complexities, discussed during the course of the

trial by no fewer than 17 experts, the jury was also sup-

posed to define areas of competition and assess the com-

petitive effect of IBM’s and Memorex’s conduct by ap-

plying abstruse economic “concepts like cross-elasticity

of supply and demand, market share and market power,

. . . [and] barriers to entry.” Jd. at 448. The use of

such economic principles for the purpose of making judg-

ments about the competitive effect of entrepreneurial ac-

tivities is difficult enough in an ordinary antitrust case.

It becomes vastly more difficult when the activities, as

well as the principles, are far removed from the every-

day experience of the jurors. As the jury foreman said

ruefully after 19 days of fruitless deliberations, “If

you could find a jury that’s both a computer technician,

a lawyer, an economist, knows all about all that stuff,

yes, I think you could have a qualified jury, but we don’t

know anything about that.” 104 Tr. 19,547-48.

Any one of the dimensions of complexity—technology,

finance, economics—might well have been expected to

baffle the ordinary juror. Taken together, and in the con-

text of the sheer quantity of the evidence offered (83 wit-

nesses, 2300 exhibits), the combination of these- aspects

made Memorex’s case too complex for the jury to be

able to reach informed, reasoned decisions on the issues

presented.

| 3a

THE JURY COULD NoT UNDERSTAND AND ACCURATELY

RESOLVE THE QUESTIONS OF ELECTRONIC DATA PROCESS-

ING TECHNOLOGY PRESENTED BY THE PARTIES’ EVIDENCE

A principal basis of Memorex’s claims was that IBM

introduced new products and altered existing products

without technological justifications for the changes.

Memorex asserted that several “interface” changes asso-

ciated with new or altered products effectively prevented

it from marketing peripheral equipment because it could

not “reverse engineer” the new interface in time to com-

pete with IBM products. For each new product or inter-

face change, Memorex contended that the alteration was

not justified by a technological advance, better perform-

ance, lower cost, or other legitimate business considera-

tion, and that the i.:w product or interface change placed

Memorex at a competitive disadvantage. In each case,

IBM responded with evidence detailing the engineering

reasons for the product changes, the resulting electronic

efficiencies and improvements, and the advantages to cus-

tomers from the changes.

The introduction of the “new attachment strategy”

provides an example of the kinds of technical issues that

the jury was supposed to resolve. See 458 F. Supp. at

440-41. As described by Memorex, this policy of IBM

included splitting a 3830 disk drive control unit, shipped

in 1971, into two parts—a “Blivet,” which was made into

an “A” Box with two disk drives, and a Director—and

then, in 1972, marketing the different packages with dif-

ferent prices. See Memorex Br., p. 69; 92 Tr. 18,609-10.

Memorex contended that the IBM strategy had no engi-

neering justification, increased IBM’s manufacturing costs

substantially, and was undertaken only to create an arti-

ficial interface designed to exclude Memorex from the

market for control units. See Memorex Br., pp. 69-72; 92

Tr. 18,622-24. IBM contended that dividing the func-

tions of the existing control unit between the two units

4a

benefited customers in a variety of ways and was prefer-

able to an alternative attachment strategy urged upon

the jury by Memorex’s expert. 458 F. Supp. at 440-41.

Thus, the jury was asked to formulate a series of

judgments about whether IBM was meeting competi-

tion in the electronic data processing industry “tech-

nologically with new or improved products” or whether

IBM was making product changes “with no technological

justification, but solely for anticompetitive reasons.” 2

Memorex Br., pp. 16, 17. And these questions were to

be decided by eleven lay persons, only one of whom

“had even limited technical education,” 458 F. Supp. at

448, and none of whom had any substantial college-

level training.

THE JURY COULD Not UNDERSTAND AND ACCURATELY

RESOLVE THE FINANCIAL ISSUES RAISED BY MEMOREX’S

CLAIMS

In addition to challenging technological innovations by

IBM, Memorex pressed other contentions that required

an understanding and application of sophisticated cor-

porate financial and accounting concepts. Memorex’s at-

tacks on the prices of several new IBM products and on

its Fixed Term Plan, together with IBM’s evidence re-

butting these claims, necessarily called upon the jury to

master and apply such recondite notions as marginal

or average variable cost, short-run profit-maximizing

price, fully allocated cosi, “price balancing,” rate of re-

turn, cash flow, debt and equity financing, and numerous

other financial and accounting concepts.

?The phrasing of the relevant portion of the jury instruction

was as follows:

Only designs which have little engineering justification and

which can serve little useful purpose except to exclude competi-

tion can be deemed anticompetitive conduct.

Jury Instruction No. 56.

5a

Memorex’s claims as to “IBM’s discrimination among

its customers, its sacrifice of short-run profits and con-

current price balancing,” Memorex Br., p. 18, carried

the jurors into the intricacies of corporate financial

analysis. The jurors were expected to understand—and

approve or disapprove—the ways a computer manufac-

turer sets prices and projects revenues and profits and

the ways it allocates costs and income to different prod-

ucts. They were expected to understand the EDP in-

dustry and the techniques of financial analysis well

enough to determine the reasonableness of IBM’s pro-

jections of revenues from particular products offered

at particular prices or the propriety of IBM’s practices

in allocating overhead costs among different products.

See, e.g., Memorex Br., pp. 61 n.38, 80 n.43.

In addition to resolving specific financial and account-

ing issues, the jury was asked to reach judgments on

such larger questions as the nature and consequences

of the “risk lease environment” said to exist in most

of the markets alleged by Memorex. See Memorex

Br., pp. 127-28. Despite the efforts of counsel, there is

reason to believe that the jury was not comfortable in as-

sessing the parties’ contentions as to the alleged risk-

leasing environment and its competitive consequences.

During the court’s colloquy with the jurors after a mis-

trial had been declared, one juror offered the following

analysis:

The Court: What did you think of the Independent

Leasing Company [Memorex’s leasing affiliate] ?

[Juror]: You mean that ILC?

The Court: Yes, ILC.

[Juror]: Well, I thought, in that industry, which

goes not like that, it goes like that, is plenty enough

work there for more companies, you know, every-

6a

body can live and eat, and I think, did think it was

— if it’s an industry like that, it—you really don’t

stay doing one thing, you go with the industry, and

I really thought all these, taking away the cash flow,

all doing these things, you know, helped them not to

get it, to just don’t get it.

The Court: Uh-huh. Fine.

[Juror]: But I think it is enough and industry

knew going out that there is enough work for more

companies to work and get their fruit.

104 Tr. 19,535.

THE Jury CouLD NoT UNDERSTAND AND APPLY THE

ECONOMIC PRINCIPLES REQUIRED TO ASCERTAIN THE

COMPETITIVE EFFECT OF IBM’s BUSINESS CONDUCT

In attempting to prove the elements of its monopoliza-

tion and attempted monopolization claims, Memorex neces-

sarily .relied on numerous difficult economic concepts.

Memorex alleged the existence of a “general purpose com-

puter systems” market and several submarkets of peri-

pheral products plug-compatible with IBM systems, and

it claimed that IBM had power to control price or exclude

competition in each of the markets and submarkets.

Proof of these markets necessarily involved concepts of

product interchangeability, including cross-elasticity of

demand and supply, market share, and barriers to entry.

See Jury Instructions Nos. 34-41. The assessment of

market power vel non required balanced judgments about

the competitive significance of changes in market share,

entry of new competitors, exit of existing firms, sources

and rates of product innovation, adoption of particuéar

pricing strategies, the existence and import of “prod-

uct differentiation,” and a variety of other structural

and behavioral features of the alleged markets and sub-

markets. See Jury Instructions Nos. 42-45.

Ta

Decisions on such economic issues required expertise

well beyond the abilities of the jury. For example, to

define the boundaries of a market for general purpose

computer systems or for disk drives, the jurors would

have had to understand, not only the economic concept of

a “market,” but also the information processing functions

such systems or drives performed, the multitude of avail-

able options for performing these functions, and the

price/performance ratios of those alternatives. Only with

such information in hand could the jury rationally begin

to determine whether other products, such as minicom-

puters or tape drives, exhibited a degree of substitut-

ability in use, or production, sufficient to warrant, as a

matter of sound economic judgment, their inclusion or

exclusion from the markets claimed by Memorex.

Similar difficulties arose out of every element of Memo-

rex’s antitrust claims. To measure market share, for

example, the jury needed to decide whether to consider

installed base or current output; storage capacity (that

is, megabytes) or the number of spindles; and spindles

owned by leasing companies or only those owned by the

manufacturer. Compare Memorex Br., pp. 129-30, with

95A Tr. 19,173-77. To assess barriers to entry, the jury

needed to decide what weight should be given to the “risk

lease environment,” to product differentiation, to econo-

mies of scale, and to “software lock-in.” See Memorex

Br., pp. 127-29.

To decide competently Memorex’s case against IBM, as

Memorex itself observed, “[t]he jury must consider all of

the evidence in the case, without compartmentalizing

it... .” Memorex Br., p. 23. Because the subject of

the case was competition and monopolization and because

the relevant facts were technological, financial, and eco-

nomic matters entirely foreign to the everyday experience

of ordinary jurors, the five-month trial only overloaded

the Memorex jury with more perplexing data than they

8a

could possibly order into an accurate picture of competi-

tive reality.

THE JURY DEMONSTRATED THAT IT DID NOT

UNDERSTAND THE CASE

The jury that heard the Memorex case, though “consci-

entious and diligent,” 458 F. Supp. at 447, and probably

a random cross-section of people in the community who

could take the inordinate amount of time to serve on that

jury, id. at 448, did not understand the issues. The

judge found that it did not. After observing the jurors

throughout the trial, after listening to the same evidence,

and after questioning the jurors about some of the aspects

of the case, he concluded that the jury had trouble grasp-

ing the concepts discussed by the expert witnesses and

that it was unprepared to decide the case. Id. at 447.

The jurors themselves agreed and demonstrated that

they did not understand the case. They made this clear

when, after many days of deliberations, they responded

to the judge’s questions during a break. For example,

the foreman thought he had “missed cross-elasticity.”

101 Tr. 19,489. Another said he “would like to kind

of look into” demand substitutability, and a third said

of barriers to entry that she “would have to read about

it.” Id. at 19,490. One juror, explaining an interface,

said: “[I]f you take a Blivet, turn it off one thing and

drop it down, it’s an interface change... .” Id. at

19,491; see also 104 Tr. 19,527-42. Another juror thought

that reverse engineering was “when you would take a

product ... reverse its function and use it in your own

method.” 101 Tr. 19,490.

After the judge declared a mistrial, he asked the jurors

whether they would want a jury to determine a case of

this type if they were one of the parties. A majority of

the jurors said that judges should hear and decide these

9a

cases without juries, and several of the jurors added that

none of them completely understood the case. 104 Tr.

19,547-52. The judge’s inquiries as to why some of the

jurors had voted as they did elicited further evidence of

the jurors’ inability to make rational decisions concerning

the issues in the case. One juror explained her “decision”

for Memorex in the following terms:

The Court: ... [W]hat was your thinking in the

case?

[Juror]: Oh, I think they tried to monopolize them

quite a bit.

The Court: Why? In what way?

[Juror]: Well, I just couldn’t say right now.

The Court: You have no idea on how they monopo-

lized them?

({Juror] shakes head negativelv. )

104 Tr. 19,528 *

8 After the trial, some of the jurors, in affidavits obtained by

Memorex, asserted that they understood the facts and issues in the

case. The affiants describe in general terms the outline of the trial,

the names of some witnesses, or some of the phrases used repeat-

edly during the trial. (Many of the affidavits use the same phases

and terminology, suggesting that they were generated under the

close supervision of Memorex. Compare Declaration of Albert

Bratovich, CR 2036-38, with Declaration of Fay McKay, CR 2054-

58.) Understanding the case, and providing the parties with a rea-

soned decision, would obviously have involved a far more demand-

ing intellectual effort than any displayed in the affidavits.

10a

APPENDIX B

Wall Street Journal, February 26, 1980, at 18, col. 3

(Eastern ed.)

AT&T JURORS FIND A LITTLE KNOWLEDGE

IS A DIFFICULT THING

* * *

Comprehension Comes Hard, If at All, in

Such Trials Presenting Complex Issues

By David J. Blum

CHICAGO—Most Americans couldn’t care less about

how a telephone works—as long as they hear a dial tone

when they pick up the receiver.

But for 12 jurors here, learning the intricacies of the

instrument and the industry has become a daily task.

They are struggling with a complex case that promises

to have sweeping effects on American business. After

three weeks of hearing testimony, they look tired and

confused.

The case is the first in a group of nearly 50 antitrust

suits brought against American Telephone & Telegraph

Co. It is expected to preview important issues and evi-

dence of later trials, including a major one next fall

brought by the Justice Department.

The basic facts are understandable enough. MCI Com-

munications Corp., a small, Washington, D.C.-based tele-

phone service, charges that AT&T kept it from entering

the private-line long-distance telephone market, and asks

for $900 million in damages.

i aaa i i

lla

But then the case becomes difficult. Indeed, George

Saunders Jr., chief defense attorney for AT&T, calls the

case “the most complicated in American legal history.”

And the lawyers, judge and witnesses frequently prove

his point. They speak to the seemingly befuddled jury in

acronyms and jargon familiar to insiders in the telecom-

munications industry, a language the jurors have only

begun to learn.

How’s That Again?

In the first day of testimony, one witness was asked:

“Did MCI’s concern over the price of interconnections

for FX and CCSA, multipoint or service outside of the

LDA, have anything to do with MCI’s inability to lease

those interconnections from AT&T?”

Replied the witness, “We never got, to the point of even

discussing price.”

Interchanges like that lead legal experts to question

whether juries can reach fair decisions in highly techni-

eal civil trials such as this one. “It’s hard to believe that

any sensible person thinks that some of these complex

decisions can be made by a layman,” says Phillip Areeda,

a law professor at Harvard University. “The notion that

they can sit here for months, remember everything and

work it out like a judge just isn’t true.”

At the MCI trial, “the jurors don’t really know what’s

going on,” says Mr. Saunders, the AT&T lawyer. But,

he says, “It’s our hope that eventually they'll get the

essence of it.” MCI’s lawyer, Robert Hanley, says the

jurors “don’t always follow along.”

Federal Judge John Grady has recognized the jurors’

problem by allowing them to take notes during the testi-

mony—an unusual departure from court practice. And

MCI has furnished each juror with a looseleaf notebook

12a

with blank pages and a glossary of technical terms.

AT&T disagrees with some of the MCI definitions, how-

ever, and says it plans to offer different ones as part of

its defense.

Autodin vs. Autovon

On a recent morning, the words “autodin” and “auto-

von” came up in the cross-examination of a witness.

Jurors searched their notebooks in vain for definitions

and finally had to rely on the testimony of one witness

who offered this explanation of the terms:

“There are two large switched services that the gov-

ernment uses internally. One is a CCSA network, using

private lines connecting switches for voices, and that is

called ‘autovon.’ Then there is another service, which I

believe most of it is provided by Western Union, using

AT&T circuits extensively, for record communication

which is typically teletypewriter to teletypewriter as con-

trasted to voice to voice or ear to voice, and it is to supply

record communication to the military side of government

use.”

Lawyers for both sides say the jury is “very smart”

and Mr. Hanley notes that “some have advanced de-

grees.” But in fact, only two have such degrees, both in

library science. One other juror is a college graduate

who works as a substitute teacher.

Most of the jurors hold relatively unskilled jobs. They

include a mail handler for the Postal Service, a research

engineer, a former waitress and secretary, a municipal

garbage burner, an electrical equipment operator, a dep-

uty county assessor, ar unemployed construction worker

and a retired kitchen saleswoman.

But trial by jury in cases such as these is a constitu-

tional right. “It is the beauty and evil of a jury that it

13a

can give justice in spite of the law,” says Jack Frieden-

thal, professor of law at Stanford University.

Well, sometimes. In an antitrust suit brought by

Memorex Corp. against International Business Machines

Corp., IBM won a directed verdict by the judge in 1978

after the jury had voted, nine-to-two, in favor of Memo-

rex. Federal judge Samuel Conti denied Memorex’s re-

quest to have the case retried by a jury after interviewing

the jurors and deciding that they hadn’t understood the

case.