2nd Day, Post Session
September 22, 2004 6:14 pm by Gene Borio5:30 PM
At the end of the session today, Judge Kessler said she was going to address the lawyers about a “procedural” matter. She made it sound uninteresting, so many people left. Those who stayed were richly rewarded with some of the most interesting byplay of the day.
Kessler was apparently displeased about receiving from the Defense 325 objections to the 66 pages of Dr. Kessler’s testimony, plus objections to every one of the 178 exhibits.
She said lawyers on both sides should not have their junior lawyers up until the wee hours going through every line of testimony to try to find some arcane conflict with the Federal Rules of Evidence.
She said many of the spurious objections were over “relevancy,” “lack of personal knowledge” and “hearsay.”
She said, “This trial will not be sidetracked or derailed by this Tsunami” of objections, some of which are so far fetched as to be ridiculous.
“I was NOT HAPPY,” she said.
Paraphrasing her:
There is no way I can do line-by-line objections. My primary objective is to be familiar with the testimony, and much of it is quite extensive, and threatens, as the trial goes on, to get more and more difficult in its complexity . . . In the Microsoft case, the parties talked over their objections. I expect the parties here to confer in serious good faith. . . If you deluge me with objections, you won’t leave me time to deal with your serious ones.
She said Defense was most exercised over Kessler’s testimony on Farone, Uydess and Wigand. But his testimony was not character testimony, only about whether the information they supplied seemed reliable.
Bernick approached, wanting clarification. Since Dr. Kessler is testifying as a “fact witness,” if he were to say that Dr. Wigand told him something bad about B&W (Bernick’s client), Bernick was afraid the judge might believe Wigand’s statement to be a fact.
(Bernick’s brilliance has a bit of a tortuous Jose Luis Borges twist to it, and I may be simplifying his argument. If so, I don’t think anyone else fully grasped it either, so there seemed no full answer to him.)