The Waiting Game

• Author: Ronald K. Fierstein
• Profession: Lawyer on the team of litigators from the prestigious patent law firm of Fish & Neave
• Pages: 441-464

441

CHAPTER 25

THE WAITING GAME

After nearly five months of testimony and courtroom drama, the trial had

finally come to a close. It had been the fourth-longest trial concluded in

any U.S. federal court that year.1 Like a campaign headquarters on the day

after an election, both sides quickly dismantled the huge operations each

had set up in nearby hotels and office buildings. Documents and equip-

ment followed the weary lawyers and support personnel back to New

York. Most had scarcely seen their families for the past six months, and

like soldiers back from overseas duty, they decompressed and gradually

eased back into their pretrial lives. Upon returning to his office, Schwartz

took the time to reach out to Land to express to him in writing his appre-

ciation for the extraordinary help he had provided during the trial. He had

become Polaroid’s lead witness and, behind the scenes, a source of tre-

mendous insight and technological expertise upon which Schwartz had

regularly relied.

“I would like to take this opportunity to write some of the thoughts I

expressed orally to you at the close of the trial,” wrote Schwartz. “Thank

you, on behalf of all of us at Fish & Neave, for all of your time, energy

and effort which you devoted to the trial of this lawsuit. Not only was it

extremely significant and beneficial to us in connection with your own

direct and rebuttal testimony, but it was extremely useful as an aid in the

cross-examination of many Kodak witnesses and in the direct and rebut-

tal testimony of many Polaroid witnesses.”2 The effective working rela-

tionship between counsel and witness had been greatly facilitated by Nan

Chequer, yet a comparable personal relationship between the two men

never developed, despite their shared and intense experience.

In large measure this was due to Land’s innate shyness and his

penchant for privacy. Also, while he seemed to appreciate his lawyers’

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A Triumph of Genius

442

efforts, Land had always had a problem in praising colleagues directly

and personally.3 Land did manage to convey his appreciation to Schwartz

in other characteristic ways. For example, with Chequer along, Land gave

his lawyer a personal tour of the Rowland Institute—the new research

facility Land was building in Cambridge. For Schwartz, it was a grand

gesture, a “surreal” experience. This was the closest to an expression of

friendship and appreciation as one could expect from the reserved and

complex Land.4 Before leaving Boston, Schwartz’s young associate who

had worked most directly with Land throughout the litigation asked Che-

quer whether Land might agree to autograph a copy of his L-Coat patent

as a souvenir of their experience together. He was surprised and delighted

when, a few days later, she produced an envelope containing the patent

copy with a small “EH Land” inscribed in red ink near the top.

Although the trial-weary litigators on both sides could have used a

vacation at this point, there was, in fact, little time to waste. Judge Zobel

had set a deadline of May 14 for the submission of posttrial briefs. It was a

chance to present their cases as clear and coherent stories drawn from the

mass of material that had been accumulated over the years throughout dis-

covery and introduced into evidence at trial and to apply those facts to the

governing law as they interpreted it. Judge Zobel had requested that each

side present a separate brief for each of the patents in suit. These were to be

accompanied by a general brief that addressed legal issues and factual con-

tentions common to all of the patents. Following these initial submissions,

each side would then have until July 12 to submit reply briefs addressing

the contentions made by each in the first set. With strict page limitations

having been set for all of these submissions, the challenge was not only to

sort through and then synthesize the vast amount of factual material but

also to present it as tersely, and yet as persuasively, as possible.

Polaroid’s general brief, consistent with the strategy adopted by

Schwartz early in the litigation, attempted to put the case, and thus the

detailed technical arguments regarding the specific patents, in some

real-world perspective. “This is no ordinary patent infringement suit,” it

began. “Polaroid’s remarkable achievements in instant photography have

been properly accorded protection by the patent system. Kodak, given its

vast economic and technical resources, and its dominance of conventional

photography, had an opportunity to make a unique contribution to this

field. Instead, it consciously chose to utilize Polaroid’s patented technol-

ogy.”5 The brief then went on to tell the “Kodak Story” that Schwartz

had worked so hard to assemble during discovery. It was a narrative that

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