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Johnny Carson used to employ an expression "I did not know that!" for instances where he was surprised by the claim or admission of a guest.

We admit surprise and will acknowledge "we did not know that!" with regard to a report by Law.com that the criminal trial judge is permitting a unique evidence presentation technique for the NetLogic trade secrets theft trial currently underway in California.

The report claims: "after each witness testifies, Northern District of California Judge James Ware will allow lawyers from each side to give a five-minute "summary argument" to "heighten juror comprehension and sharpen the issues in dispute. The side presenting the witness will go first."

Hmmm. Very interesting. Very, very interesting. This is not normal and we've never seen trial courts permit such a protocol - it would seem to benefit the defense in that those attorneys can supply commentary on evidence the government is introducing as it is being introduced. Defense attorneys usually only have the benefit of cross-examination of the witnesses and the proponents of documents or other evidence - and sometimes the value of the cross-examination in complex cases isn't clear to the jury until the defense later (sometimes, much later) explains: "remember when I asked witness x whether so-and-so was at that meeting? well, this is why."

Defense lawyers Thomas Nolan from San Jose and Edward Swanson from San Francisco requested the protocol, "given the complexity of this case and the technical nature of many of the witnesses' anticipated testimony," they wrote in a court filing.

Assistant U.S. Attorney Matthew Parrella opposed the move, calling it a waste of time that serves no productive purpose. But - apparently Judge Ware disagreed.

We anxiously await further reports from this trial - including the prosecution or defense objecting to characterizations made by the other side in these five-minute summaries. Judge Ware will surely have to police these efforts judiciously.

More soon . . . .

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