Nothing makes an attorney more nervous than the unknown. For example, I've had a number of clients tell me they wanted to conduct an in-court experiment in front of the jury to prove their patent case. Or they want to open a package sealed 40 years before in court because they know its contents will get them the win. Sure, such a performance, if it works, would be amazing. But my response is always the same:
I don't care if the laws of physics dictate the results will come out in your favor 90% of the time. If it fails in front of the jury, you've just lost the case.
I remember once a law firm (on the other side) did just this. They reconstructed a piece of equipment, and were prepared to run it to show it invalidated our patent. Guess what? It ran successfully for three seconds. Then the motor made an awful noise. And then the lights on the display dimmed. Then it shut down. And then, the attorney on the other side said, "Oh no."
That's why I never let "the unknown" into a case. Heck, at trial I normally won't ask a question unless I already know the answer, no matter how tempting it is.
Which is why I shocked myself last year by making four predictions about the legal industry. I gambled on the unknown in front of a lot more than six jurors and the judge.
So, how'd my 2012-prediction experiment perform?
First 2012 Prediction: Topps v. Leaf lawsuit over Leaf's Best of Baseball product: "This case should settle this year. And confidentially."
How'd I do? I got this one right. It settled confidentially on January 12 -- less than a month after publishing the article.
One for one!
Second 2012 Prediction: Upper Deck v. Blowout Cards case over UD's distribution agreement: "et's just say this case will confidentially settle this year."
How'd I do? The case settled in April, 2012.
Two for two!
Third 2012 Prediction: Aldrin v. Topps and Abdul-Jabbar v. Upper Deck -- two cases about when a trading card company needs to get permission to use someone's image on a card: "At some point this year, both courts will issue final rulings that contradict one another."
How'd I do? Wrong! They both settled, with the Abdul-Jabbar case settling after the first day of trial (in other words, just a couple days away from a court ruling).
2 for 3.
Fourth 2012 Prediction: The Jerry Springer episode that is the Upper Deck v. Upper Deck saga -- "My real prediction, and this is a safe one: the lawsuit devolves into name-calling and more wackiness. And two more articles from me this year."
How'd I do: I nailed this one, too. This year, the two Upper Decks definitely name-called and delved into wackiness. There were allegations of slander and public drunkenness, court documents providing snippets like "inappropriate comments and gestures towards female guests," and even allegations of "touching the breast of at least three female guests, including the wife of a CEO of a company we worked with." Heck, there was even an appearance by the ZhuZhu Pets! This case did not disappoint. And I got more than two articles on this guy.
3 for 4.
Overall, the unknown did not treat me too poorly in 2012. Let's see if next year I can do better.
1. Panini's attempt to register "Limited" for trading cards
2013 Prediction: It shockingly turns out that Panini wants the trademark LIMITED so that it can push for a new product line where NBA stars model their girlfriends' clothes for The Limited clothing stores.
Actual Prediction: There is NO WAY Panini gets a LIMITED registration in 2013.
2. Durantula v. Kevin Durant, Panini America and Nike
2013 Prediction: Kevin Durant grows so sick of the nickname "Durantula" (a name anointed upon him by the media, and not chosen by him) that he develops arachnophobia, and every time someone yells out, "Durantula!" he thinks there's a spider on him, freaks out and turns the ball over.
Actual Prediction: This case will settle confidentially.
3. Wildcat v. Topps, et al. (the electronic trading card case)
2013 Prediction: The TV Show Revolution comes true, and, since no one has electricity, electronic trading cards cease to exist!
Actual Prediction: Given the current anti-patent climate, I think the patent (and/or the case) will blow up sometime next year. This will result in a win for the remaining defendants (although, those defendants have paid and will need to spend quite a bit of money first to do this). As a plaintiff's attorney, this prediction pains me a lot!
4. Upper Deck v. Upper Deck
2013 Prediction: Upper Deck issues a limited series trading card set to commemorate the case, including a dual on-card autograph of Richard McWilliam and Nico Blauw. Only four such cards are made, because on the fourth card both added slightly nasty inscriptions about each other. Those inscriptions lead to another defamation lawsuit. On the plus side, the card sells on eBay for a record price as Panini, Topps and Leaf get into a bidding war to purchase it for a buyback redemption. And that leads to another lawsuit.
Actual Prediction: Tell me if this sounds familiar: "the lawsuit devolves into name-calling and more wackiness. And two more articles from me this year." Yes, same prediction as last year, but I think there will be considerably less name-calling. But there will still be wackiness! And at least two articles. To be fair, this is the prediction most likely to fail given UDI's bankruptcy issues that could mean 2013 is the final year of this lawsuit.
One more prediction while I'm at it, and this one is a safe bet: at least one trading card manufacturer is involved in lawsuit that makes no sense, and requires a legal translation.
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