I had clerked for a federal judge who applied "old school" philosophy to the handling of civil disputes - that is, let the parties have maximum scope within the

I had clerked for a federal judge who applied "old school" philosophy to the handling of civil disputes - that is, let the parties have maximum scope within the rules of civil procedure by which to fashion and try their cases, with the judge doing minimal supervision as needed just to keep them in bounds. This minimalist approach led inevitably to very lax supervision of the case but this was not regarded as something bad but rather as the method of case handling for which the U.S. court system had been designed. The broad idea was that, under the U.S. constitutional system, every party presumptively had the right to bring every conceivable claim affecting his interests before a jury of his peers for final determination. Of course, this philosophy fit within the nature of the jury system itself, by which parties could only elect a jury trial in cases "triable by jury" as prescribed by the U.S. Constitution and the implementing rules of civil procedure. If claims were triable by jury, and if a party elected to have them tried by a jury, this right had to be preserved at all costs and it was regarded as inappropriate for a judge to be too aggressive in attempting to screen and bounce claims at any part of the pretrial stage or to use too much authority at the trial itself to limit the scope of assertable claims. Judges from this school of thought typically had been trial lawyers themselves, often having honed their skills in a context (e.g., personal injury) where legal technicalities mattered less than the big issue of how a jury might find the facts at a trial. The minimalist philosophy had worked well in a day when claims were few and limited in a typical civil case. In the modern commercial era, though, and especially in the federal courts, this approach of letting the parties run wild leads to many problems of case management and opens up the door to abuse for aggressive litigants who throw power and money around freely as a means of enlarging the settlement value of their cases. Thus, the judge for whom I had clerked (who, by the way, was a superb and much respected judge in his own right, having been many years ago the Chief Judge of the Northern District of California, the same district in which Judge Alsup sits), would have some 400 active civil cases on average at any given time while those who applied active case management were typically down in the low 200's. Parties would have huge delays in having a trial date assigned to their cases because so many others were in line before them. And trials themselves could run for weeks and months just because no check was placed on the lawyers throwing out everything they could to see what might stick in front of a jury. Judge Alsup, in contrast, applied very strong case management skills to this case: (1) he forced Oracle to pick its strongest patent claims and to forego the rest (in theory, he had no power to do this but he effectively managed it by telling Oracle that, if it did not trim its claims, he just might exercise his powers to stay the entire litigation until the whole lot of them got full patent reexaminations before the USPTO); (2) he gave the parties very strict time limits within which to put on their evidence; (3) he set out strict rules for discovery and then enforced them; (4) he was ultra-aggressive in knocking out wild expert claims by which Oracle had sought to inflate its alleged damages into the billions and put Oracle's expert through multiple cycles that amounted to telling him, "OK, now come back with something credible before I will let it into evidence in my court;" and (5) he brilliantly handled the tricky copyright issue relating to APIs and "structure, sequence, and organization," which, being a very knotty legal issue in light of Ninth Circuit precedents, he allowed to go before the jury on the assumption that it could find infringement on the issue even as he reserved the ultimate authority to decide the issue regardless of what the jury concluded (the article here calls this a "feint" but, in reality, it is just smart case management in giving the court of appeals the full range of options on what to do with the case if it ultimately reversed his ruling). The case management aspects are the "under the hood" part of the case. Very few observers besides the insiders focus on it. It was, however, vital to the ultimate outcome. Just imagine if Oracle would have gone to trial with dozens of claims and if they all got tossed to the jury for ultimate determination, including the ultimate decision on whether APIs were copyrightable. That methodology - which could respectably have been applied to this case by a federal judge - would have given Oracle an open ticket to abuse and game the system and would significantly have enlarged its prospects for success in sticking a gun into the side of Google. The biggest downside, though, for the rest of us would have been in the resulting uncertainty on how such claims would be resolved in the future. Imagine how the developer community would fare in a lottery system where every API-related claim imaginable were tossed to a jury with prospects for a crap-shoot outcome. If that is a horrific thought, then you have one more thing for which to thank Judge Alsup. Smart case management, a smart judge, and a superb outcome. Be thankful this landed the way it did. It could easily have been very different.