In 1781, the Continental Army won a decisive battle in the War of Independence by employing a daring pincer movement, in which the Continental forces were tactically divided so as to attack the advancing British from two flanks.
The same tactic is being employed as we speak in the ongoing Vringo (NASDAQ:VRNG) vs. Google (NASDAQ:GOOG) patent infringement trial. As the trial has unfolded, it has become clear that Vringo's legal team has decided upon a pincer movement of sorts by deploying its liability expert, Dr. Frieder, to attack Google on one flank, while reserving its validity expert, Dr. Carbonell, to attack Google from an opposite flank after Google rests its case.
Vringo's strategy of "bookending" its experts is highly appropriate under the circumstances. During Vringo's case in chief, it bears the burden of proving Google's infringement, and so calling Dr. Frieder to testify as to this issue was necessary in order to establish its prima facie liability case. During Google's case in chief (which is proceeding as we speak), it has two objectives: 1) defend against Vringo's infringement claims, and 2) prove that the Lang patents are invalid due to the prior art. Google has placed all of its eggs in one basket, choosing to use Dr. Ungar as its expert on both issues. Once Google rests its case, Vringo will "have the last word," so to speak, by presenting Dr. Carbonell -- who will testify after Google's presentation has already been completed.
This order of presentation clearly works to Vringo's benefit since its experts have addressed the jury first, gaining the advantage of primacy, and will get to address the jury last, gaining the advantage of recency. This mirrors the structure of closing arguments, in which Vringo also gets to argue first and last to the jury, with Google having one opportunity in between.
None of this would matter if Vringo's experts were ineffective, or if Dr. Ungar was overwhelmingly effective in contrast to them. However, that does not seem to be the case so far. Admittedly, we are getting into an area of subjective evaluation here, but my review of the testimony seems to show that Dr. Frieder was very effective in communicating his points to the jury, whereas Dr. Ungar appears to have been less so. It remains to be seen how Dr. Carbonell will testify, and so the emphasis must remain upon how well the strategy is executed. The strategy itself, though, is sound and advantageous to Vringo.
We are winding down toward the end of this grueling process. Expect Google to complete its side of the case on Monday or early Tuesday, at which time Vringo should call Dr. Carbonell. After that, the attorneys will present their closing arguments, and it is reasonable to expect that the jury will be instructed and begin deliberations as early as Tuesday or Wednesday. It would be a surprise if we do not have a verdict next week.