Why do they always have Mr. Foreman, instead of Mr. Smith or Mr. Brown, in a jury trial? That was a small mystery in my mind following the Korean subtitles of Hollywood movies. The Korean subtitles translated “Mr. Foreman,” as it appeared in a judge’s famous question of “Mr. Foreman, has the jury reached the verdict?” as if it were a last name of one of the jurors. It was not until long afterwards that I realized who this Mr. Foreman was: It is a special term referring to a head juror.
Amusingly, the same mistranslations are still found in some Korean captions these days. In fact, a trial by jury would be the single most distinctive feature that many people in Korea find interesting and mystifying, although Korea recently adopted a pilot program of jury trial with a limited scope.
The jury trial has become a mantra of the commentators in the Korean press since the verdicts of the two trials in U.S. federal district courts were rendered lately: one in the Samsung-Apple trial in San Jose, California, and the other in the Kolon-DuPont trial in Richmond, Virginia. In both trials, the juries came back from their deliberations with adverse verdicts for the Korean companies with astronomical damages, which even affected the stock prices of these companies.
The commentaries explain how complex these patent and trade secrets issues are and yet how underequipped the jurors are in dealing with these technical issues. Some critics even depict the verdicts as a new type of trade protectionism. Well, the national frustration is understandable, but these initial reactions are either misplaced or overblown.
A jury is meant to be a group of lay people, who are supposed to have no direct knowledge of the case. Questions posed during jury selection even ask if the candidate has read newspaper articles about the case. A prospective juror with knowledge or awareness of the events at issue is thus rejected by either party. Under this system, one would be surprised if jury members include someone with high expertise in the areas of patents or technologies. So, the initial response of the Korean press misses the point.
What about the criticism that the verdicts are the reflection of the new protectionism? Well, unfortunately, it is too much of a stretch to say that protectionism underpins these decisions. Protectionism requires governmental action, and does not cover the flow of thinking going on in the minds of people, whether it is favoritism or patriotism. Yes, the decision is disappointing but calling it protectionism is too much. Protectionism is not a word that covers all kinds of difficulties that Korean companies may face abroad. We need to save it to condemn real protectionism.
What does raise a red flag for us, though, is an odd combination of global issues and local disposition. The issues raised here are breathtakingly global: these companies do not know boundaries and vie for the single global market. But all these global issues have been squeezed into the terminus of the local jurisdictional corridor of a country. What happens as a result is respective courts in respective countries all render different decisions on virtually the same issue. Then who coordinates these different and conflicting judgments and orders? No one does. With respect to the Samsung-Apple dispute, it may well be the case that at the end of the day we will be seeing a bunch of fragmented judgments and decisions from 30 different proceedings in nine different countries.
These trials inform us that global companies will have to struggle with this systemic loophole as market competition intensifies. This systemic mismatch is most vividly observed in IT sectors where the whole world actually operates as one single market, and yet competitors pursue judgments all torn to rags. The verdicts are indeed disappointing to the Korean companies and watchers in Korea, but the initial national reaction involving a non-expert jury and the mentioning of protectionism is largely overblown and inaccurate. An unsubstantiated misperception may only complicate the situation and blur the eyes of the corporations facing the real threat.
By Lee Jae-min
Lee Jae-min is a professor of law at the School of Law, Hanyang University, in Seoul. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.
