Is Judge Denise Cote biased? An article from Fortune’s Philip Elmer-DeWitt quotes a lawyers-reviewing-judges site to suggest that she has a habit of “deciding early on who the good guy is and who the bad guy is and ruling accordingly.” It also points out that, for all her complaints about the publishers and Apple being “unrepentant,” it is routine in settlements not to admit to any wrongdoing for a number of important legal reasons.
In her response, Cote gave short shrift to the list, saying that she did not disregard certain testimony, that if Apple wanted her to consider call patterns from other periods they should have given her the records of those other periods, and that she drew more from records and testimony of the people actually involved with what happened rather than the expert testimony of people who didn’t actually have anything directly to do with the case. She found testimony from Google and Amazon to be credible, and felt that there had been adequate discovery about Amazon to deal with the matters at hand.
The trial to determine damages will take place in May, and will be decided by a jury rather than Cote herself. There will be another hearing on the proposed settlement with Apple on August 27th.
The question of Cote’s bias is an interesting one. If she is, it could leave her opinion vulnerable to overturn on appeal. It seemed to me that her opinion was founded on fact and carefully constructed to leave very little wiggle room, but then I’m not a lawyer, and do admit I have a bit of a bias against Apple and the publishers in this matter.
But then, as I’ve noted before, Philip Elmer-DeWitt is not exactly without a pro-Apple bias himself. And in the end, it may not matter what Cote has done in the past so much as what she did on this case. We won’t know for sure until the appeals court has its say.