I began my legal career working for several years at in Big Law. In one case, a stultifying bureaucratic management for a major steel company was building a new plant. After hiring a firm out of the midwest to manage the construction on a fixed-fee contract, it proceeded to make life miserable for that firm by making never-ending revisions to the project plans throughout the course of construction and this not only caused that firm to incur cost overruns but also had the effect of causing substantial delays in getting the work done. Everything was done through a multi-layered committee committee structure, with memos continually being circulated about needs to separate the "wheat from the shaft" and like gems. When it was all done, this mega-sized steel company went out and hired a professional hatchet firm to assemble a "delay damages report" (I don't remember the exact name but I am sure it was much more high-toned than my description here). It then used this report to send a demand letter to the midwest firm, claiming that their management of the construction project was inept and that it had to pay millions of dollars in damages on account of the delays in construction. When they refused, they got sued for the claimed damages.

I can still vividly remember how, as a young lawyer, I was so stunned by the sheer phoniness of this so-called expert report - here were a bunch of bungling, bureaucratic committee types who couldn't make a key decision to save their lives using a sham report to try to lay the blame for their own faults at the feet of an innocent firm that had simply done its job. Everything in that report was couched in passive voice and dressed in self-important language - to a point where you had no idea who had done what but had only a vague sense that this or that "had transpired" with this or that result "having ensued." What is worse, the report was replete with dishonest (and obviously deliberate) renderings of key facts and with conclusions that could only be reached by the most absurd disregard of logic imaginable. I remember thinking to myself: "this is the suit-and-tie version of a stick-up in some back alley." And the case worked out true to form, with what must have appeared to be surreal results from the viewpoint of the midwest firm's executive management. Six lawyers and four paralegals were assigned to the case. Thousands of boxes of documents were assembled with lawyers and paralegals being tasked to go through each document mindlessly summarizing it on a "digest sheet," with the results ultimately to be compiled into an omnibus analysis report that could in turn be used by competing experts to attempt to rebut the absurdities of the original report. Thousands of hours of billable time racked up and this process was maybe 10 or 15% done when I decided to do a very careful analysis of a relatively few key documents only, to put the story in a context that readily demonstrated the sham nature of the "delay damages report," to summarize everything in a 50-page write-up, and to give that to the partner in charge. Within a short time, the executive management of our client used that write-up to meet face-to-face with their counterpart executives on the other side and the case quickly settled for a very modest money payment. What a mess, I thought at the time, and all from a phony expert report.

As the facts are emerging in Oracle's attack upon Google, it is clear that there are many complex elements here by which Android might ultimately be found to infringe upon Java in this or that respect but it is equally clear that, when it is all put in context, the damage claims being asserted by Oracle are about as phony as one could imagine. This Groklaw piece does a splendid job of picking the high points from the critique that Google's lawyers have put together to decimate the report of Oracle's key damages expert. All I could think of as I read this was how this sort of phony "expert analysis" remains as prevalent as it did back in my early days of lawyering (over 30 years ago) - different legal context, different facts, same exact techniques, same sort of hired guns. It is enough to give anyone a very jaded view of law and how its outworkings can harm people. Here, Google is more than capable of being able to afford to hire the best in order to defend itself. But what does an average person or company do when faced with such situations? It is truly dismaying to contemplate.

Oracle will of course fight to resist Google's challenges to its damages claims and it will be up to the judge to decide. But the judge recently warned Oracle that this cycle will likely be its last chance to fix the problems with its expert's report (see http://news.ycombinator.com/item?id=3500459 for a detailed analysis of this) and so this will soon reach a decisive point. The result will be, I believe, that Oracle will get its day in court but will only be able to proceed with a much-stripped-down version of its claims - something that might hurt Google a bit financially but will pose no real threat to the Android platform as a whole and will amount in time to nothing more than a blip on the radar.