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A New Litigator on the Novell Team
Saturday, August 04 2007 @ 12:27 AM EDT

And what a litigator. Novell has added Eric M. Acker to the team. That tells me that they are seriously preparing for trial, and they are making sure their heavy guns are in place. He's a former prosecutor with, as Martindale.com puts it, extensive litigation experience. That's exactly what you want in a litigator. That and you want him to have won over and over, and this guy has, as his bio at Morrison & Foerster tells us:
Eric M. Acker is a former federal prosecutor with extensive trial experience. His practice focuses on intellectual property litigation, including patent, trade secret and related licensing disputes. In the past two years, Mr. Acker tried to verdict four patent cases. These trials led to favorable results for Morrison & Foerster clients, including a jury verdict of patent invalidity, a jury verdict of no willfulness, and a court finding of patent unenforceability based on inequitable conduct. In addition, Mr. Acker has obtained multi-million dollar jury verdicts for firm clients in trials in both state and federal court.

Prior to joining Morrison & Foerster in 1999, Mr. Acker was an Assistant United States Attorney in the United States Attorney's Offices for the District of Columbia and the Southern District of California. Mr. Acker tried over 45 jury trials as a federal prosecutor. He currently is the head of litigation for the firm’s San Diego office.

He won patent litigation for defendants, in other words, before KSR made it easier, and afterward, he won a case that you may have read about, one of the rulings reflecting the new climate post KSR, McKesson v. Bridge Medical. Winning four patent infringement cases for defendants in two years. I'm impressed, I have to say. And 45 trials is a lot. It means he's used to working in front of juries. He has another area of practice, securities fraud, also one of Morrison & Foerster's specialties. Here's Boies Schiller's blurb in Martindale's. And David Boies', which doesn't mention intellectual property law.

I'd say Acker's just the guy you want defending you if you've fudged any SEC rules. The opposite is that you'd rather he not be against you if you have. That's what would keep me awake nights if I were a SCO executive or board member. I'd be asking myself, why did they add him to the team? There are no patents in this picture. You'll notice though that he does IP law, period, including trade secrets and licensing disputes. That should come in handy in this fact pattern.

This doesn't mean the other lawyers on Novell's team are now shoved aside by any means. Litigation is a team sport. And there are specialties. You might assign a guy who is an expert in appeals, for example, to sit quietly through the trial taking notes and making sure you don't miss anything. If you attended a trial every day, you might think he was doing nothing.

Or he might be coming in to do a lot. We'll find out at trial. Some litigators like to be involved from day one in building the case, so they can keep track of all the details. Others like to swoop in after discovery. This addition could mean the latter. He's the head of litigation in the San Diego office, after all. Chris Brown told me the other day, though, that he can't wait to see the trial and watch Michael Jacobs in action. He says he's like a suave Columbo. One thing is for sure, the trial will be interesting. If any of you are thinking of attending this historic event, do email me, so we can coordinate. It'd be sad to have three of you there one day and nobody the next. And the day we have no one will naturally be the day Maureen O'Gara breaks down on the stand and confesses.... nah. I'm getting carried away. But all jokes aside, I do want to cover as many days as we can.

Here's the PACER entry:

371 - Filed & Entered: 08/03/2007
Motion for Admission Pro Hac Vice
Docket Text: MOTION for Admission Pro Hac Vice of Eric M. Acker, Registration fee $ 15, receipt number 548982, filed by Defendant Novell, Inc.. (Attachments: # (1) Exhibit A # (2) Exhibit B # (3) Exhibit C - Text of Proposed Order)(Sneddon, Heather)


  


A New Litigator on the Novell Team | 231 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: dobbo on Saturday, August 04 2007 @ 12:39 AM EDT

So PJ can find them

[ Reply to This | # ]

Off Topic
Authored by: dobbo on Saturday, August 04 2007 @ 12:41 AM EDT

Don't forget to use HTML to make those links clickable.

[ Reply to This | # ]

Eric M. Acker vs David Boies - Round One
Authored by: entre on Saturday, August 04 2007 @ 02:25 AM EDT
Without enough new cash flow or pipe fairies, is this new Novell litigator
showing SCO's weakest link, that being they do not have enough cash to hire a
REAL IP litigation attorney for the jury trial and will therefore lose in front
of a jury miserably? There is nothing like sticking it back in your face for a
clear demonstration of intent to win. Go Novell!

[ Reply to This | # ]

I find the personal comments rather unbecoming
Authored by: Anonymous on Saturday, August 04 2007 @ 02:31 AM EDT
From an author who may not even be a person.

I imagine that you wouldn't be best pleased about SCOphiles gloating over the
prospect of you being breaking down in the witness box, or being cited for
contempt for being a no show, would you?

[ Reply to This | # ]

PJ - A question
Authored by: tyche on Saturday, August 04 2007 @ 04:24 AM EDT
AS I understand it, from previous "introductions" of litigators to the
court (shown on Groklaw), the only time a lawyer is introduced to the court is
when he/she would be present and possibly would be taking an active part. With
this man's credentials, I would almost expect that he would want to be in on the
background of the case to make sure that he understood it and to offer
suggestions on questions and case direction along the way.

Could it be that he was actually "consulting" or on retainer with the
law firm, but wasn't introduced to the court until there was the possibility
that he might be used in a trial?

Craig
Tyche

---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett

[ Reply to This | # ]

People who love their job
Authored by: Anonymous on Saturday, August 04 2007 @ 09:08 AM EDT
PJ,

I must admit, you're very good at showing that people who excel at their work
just love their job, too. This new litigator has turned his job into a fine art
by now. Experience like that indicates that he's seen the many twists and turns
that litigation can take and that he can anticipate many possible outcomes very
well.

But most of all, his experience shows that he truly enjoys the challenge of his
trade.

Thanks for pointing that out for us.

Scott

[ Reply to This | # ]

Still Water
Authored by: Anonymous on Saturday, August 04 2007 @ 11:37 AM EDT
Runs deep, Novell has stood by with quiet precision and very user friendly
facts. Now they have a top shelf litigator with depths of unknown fathoms. You
could say BSF and Scox is treading in deep water that is starting to rise is
temp.

Dates are set, Novell is ready- send in the clowns.

This is all gonna be worth it, to watching the public and professional
humiliation of Sco and their legal team

[ Reply to This | # ]

  • Still Water - Authored by: Nick_UK on Saturday, August 04 2007 @ 01:50 PM EDT
    • And - Authored by: Anonymous on Saturday, August 04 2007 @ 02:30 PM EDT
Missed Opportunity!
Authored by: Anonymous on Saturday, August 04 2007 @ 01:46 PM EDT
Imagine if Mr. Acker's parents had given him a middle name starting with H?

[ Reply to This | # ]

A New Litigator on the Novell Team
Authored by: Anonymous on Saturday, August 04 2007 @ 03:16 PM EDT
And we still do not know what issues, if any, will survive summary judgment and
even get to trial.

As PJ has said, both sides have to prepare "as if" everything gets
tried, but in reality that's NOT going to happen.

[ Reply to This | # ]

Morrison & Foerster
Authored by: Anonymous on Saturday, August 04 2007 @ 07:08 PM EDT
They were counsel for a dot-com I used to work for (during the time Novell's new
guy was with the company, but I'm pretty sure we dealt with a different branch
office than he's at now).

My bosses explained to me that Morrison & Foerster are the kind of lawyers
that you always hope to have on your side, and never on the other side.

I'm sure their nickname is known well enough that I don't even need to repeat it
here. :)

[ Reply to This | # ]

Rambulations - but not all OT
Authored by: webster on Saturday, August 04 2007 @ 08:40 PM EDT
..
It's not easy to go to jail. You have to be persistent. Or do something really
horrendous on the first try.

PJ noted that this new guy, Acker, had 45 trials as a prosecutor for the US
Attorney's Office for the District of Columbia. This is an unique office noted
for giving its Attorneys a lot of trial experience. This is because it is near
the Justice Department that sends Attorneys on special assignments and because
it prosecutes most of our local crime. Normally a "State's Attorney"
would prosecute local street crime, but here in DC the US attorney prosecutes
all felonies and most of the misdemeanors. Until sentences for most
misdemeanors were reduced to 180 days some years ago, most misdemeanors were
tried before juries. In a criminal courtroom, all the cases called belong to
the prosecutor that day. It is an excellent way to get trial experience. A
prosecutor can get multiple jury trials a month if they are not too long,
serious, or complicated.

The fact that the US Attorney prosecutes most of the local crime used to be an
hegemony issue, but now it is a budget issue. The more the US pays for things
around here the better it is for the locals, especially our self-beleaguered
{thanks, spell-check!} politicians.

So why is all this crime here for Mr. Acker and others to practice on? To
loosely explain the community, we have many people who are attracted to drugs
and a good flow of federal money. There is fast money to be made around here if
you minimize your risks. DC has flourishing drug markets. It is a PCP Mecca.
The doubters drive in from Baltimore to buy and sample the renowned PCP. What
fools are they to doubt as they are found in a slumber in the middle lane of the
Interstate or halfway through their windshield. However many buy their drugs on
the street, an expensive and risky thing to do. When they get caught, they go
to our local courts. When the upper level conspirators and high-weight couriers
get nabbed, they go to Federal Court. In both the Office of US Attorney
prosecutes. They begin with misdemeanors and in no time work up to felonies.
There is a lot of ancillary crime too. When a dealer gets stiffed for a few
grams of crack, he does not go to small claims court. If he gets caught
settling his accounts, we have a violent crime. [The War on Drugs is endless.
There is fast money on both sides from the same source, the taxpayers. Reminds
one of Iraq as we fill our tanks. Sub-rant over.] Like any civilized city, one
wants to have the Police be the biggest gang in town. In DC we have numerous
police forces and fortunately their leaders cooperate. Our jurisdictional
peculiarities go back to our unique founding. Gore Vidal tells us that we are
here because the Virginia Junta led by Washington wanted the Capitol near his
plantation which was right across the river where Kennedy lies now. (Feel free,
flamers, to set this straight.)

So how does all this experience help Mr. Acker? Sure you study your case, you
study your law, but the most important things you do are put on your witnesses,
protect them during cross, cross-examine the other sides witnesses, and make
your closing arguments. This is more an art than a science. Each time your do
these things, you learn something and add it to your trial kit. So even though
you may do fifty drug cases, each time you add something, improve on something,
hear something new, try something new. You develop what works for your
personality and style. Mr. Acker clearly has found stuff that works for him.
You develop paragraphs: inference, reasonable doubt, burden of proof,
possession, constructive possession, missing evidence or witnesses,
contradictions, impeachment, experts.. You develop arguments, anecdotes, quotes
for all of these concepts and can expound them as needed without even talking
about the case at hand. Often times you have to.

But don't think for a minute that Mr. Acker's opponents are quaking in their
boots. They have experience too. As has been said here before, the more and
varied experience you have the less you can predict. There is no celebration of
Mr. Acker's losses here. "There's not a rider who's not been throwed, nor
a horse that ain't been rode." It's up to the jury whoever that is.

---
webster


© 2007 Monopoly Corporation. ALL rights reserved. Yours included.

[ Reply to This | # ]

Morrison & Foerster ranked 8th in patents
Authored by: Anonymous on Saturday, August 04 2007 @ 10:12 PM EDT
As of august 2007, Morrison & Foerster is the 8th ranked firm in the "TOP 10 Patents" ranking according to martindale.com.
Boies, Schiller & Flexner doesn't appear neither on this nor any other of the published rankings.

TOP 10 law firms by activity @ martindale.com

[ Reply to This | # ]
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