In the News The National Law Journal

Winning

05 June 2006

There are close to 1 million attorneys in the United States, and a fair number of them make decent livings winning more trials than they lose.

So, how do you go about picking just 10 to profile in a section dedicated to winning attorneys?

You cast a wide net and acknowledge upfront that it's a subjective process. The net we threw out contained some basic criteria: that nominees have at least one significant win--either bench or trial--within the last 18 months, and a track record of significant wins over many years.

'Significant wins' include those with large monetary awards, or, from the defense perspective, prevailing when there is the risk of substantial damages. Other factors that piqued our interest were instances where a win altered case precedent or occurred in a hostile jurisdiction.

When we drew in the net, it was filled with provocative choices from reader nominations, as well as our own research. Some of these verdicts will be, or have been, modified by judges or appeals courts. That's not the point. What is important is how these litigators connected with jurors and judges and what strategies they used in the heat of litigation to land a huge verdict or get a client off the hook.

The 10 attorneys chosen here, and the cases that got them nominated, reflect the legal environment of today. In a world dominated by fallout from the Enron and Tyco International scandals, four of the attorneys won significant corporate fraud or white-collar crime cases. And in an economy dependent on innovations powered by ideas, another four won trials involving intellectual property.

What makes these attorneys tick? What are they thinking in the courtroom? The answers are as varied as the attorneys.

W. Mark Lanier, a Texan with a competitive streak as big as the Lone Star State, won a $253 million verdict against Merck & Co., the maker of the arthritis drug Vioxx, in 2005. He then proved it was no fluke by winning a $13.5 million Vioxx verdict earlier this year.

Lanier, founder of The Lanier Law Firm in Houston, looks for an edge wherever he can find it. When closing the New Jersey trial, he described the case like several episodes of the primetime soap Desperate Housewives, complete with a chart.

Walter F. Brown Jr. of Orrick, Herrington & Sutcliffe won the acquittal of McKesson Corp.'s former chief financial officer. In a key tactical move, he reduced the chances of the 'Enron effect' by convincing the prosecution to waive a jury trial.

Ernie L. Brooks of Southfield, Mich.'s 46-attorney Brooks Kushman scored a $115 million infringement verdict against mighty Microsoft Corp. His secret? Keeping it simple for the jury, and being very selective on the issues he brought to trial.

Stephen D. Susman of Houston's Susman Godfrey won a $420 million federal antitrust case, the fifth-largest verdict of 2005. Although a judge vacated the award in March, Susman points to a number of factors that landed the mammoth verdict. Chief among them was a two-minute montage showing the worse moments of the opposition's key witnesses. It worked.

Michael Dockterman of Chicago's Wildman, Harrold, Allen & Dixon used one of the more unusual props to make its way into a courtroom: the Toys 'R' Us icon, Geoffrey the Giraffe. Dockterman was representing Toys 'R' Us Inc. in a contract dispute with Amazon.com Inc. The judge ruled for Toys 'R' Us.

Bill Price of Los Angeles' Quinn Emanuel Urquhart Oliver & Hedges took what many patent attorneys regarded as an audacious gamble: In a patent trial involving complex technology, he decided not to call his own expert witnesses. He made that choice after watching his opponents' expert witness lose credibility on the stand. It proved a prescient choice: Price won a $128 million verdict.

The hostile-environment award goes to Steven D. McCormick of Chicago's Kirkland & Ellis, who had to defend a case in the hometown of the plaintiff, a large corporation that had been a big employer in the area. He worked to humanize his clients in front of the jury, a move that paid off with a defense verdict.

Matthew D. Powers of New York's Weil, Gotshal & Manges regards each patent trial as a story waiting to be told. He won a $465 million verdict for his client by illuminating a high-stakes tussle over proprietary technology.

Gregory P. Stone of Los Angeles' Munger, Tolles & Olson won a critical patent trial by showing the jury a decades- old film of his clients as younger men pursuing their dreams. He calls it 'the people side of the story.'

Peter A. Wald of Latham & Watkins also had to deal with the post-Enron environment by defending auditor Ernst & Young LLP against allegations that it was liable for a company's fraud. His deft use of appealing witnesses and damning documents carried the day.

A Battle On Their Turf: Steven D. McCormick

Bartow may be a friendly central Florida town, says its chamber of commerce, but AlliedSignal Inc.'s lawyers did not see it that way.

For six years after getting hit with a $375 million civil fraud suit filed in state court in Bartow, AlliedSignal fought to have the case heard anywhere but there. It was the back yard of the plaintiff, Breed Technologies Inc., which had once been a major employer in the region. The company made auto safety equipment, such as airbags and seat belts.

Since 1999, 17 judges in seven state and federal courts heard procedural wrangling over jurisdiction, but the case ultimately returned to Breed's home base: Polk County Circuit Court in Bartow, a short drive from company headquarters in nearby Lakeland. Breed Technologies v. AlliedSignal Inc., No. CA-002478 (Polk Co., Fla., Cir. Ct.).

AlliedSignal, a $28 billion conglomerate in New Jersey now known as Honeywell Inc., faced a possibly hostile small-town jury pool. Breed was once the third-largest auto-occupant safety-equipment supplier in the world, but tanked, filed for bankruptcy, was purchased by an equity firm and relocated to Michigan.

Breed had sued AlliedSignal over Breed's 1997 purchase of AlliedSignal's auto safety restraints system division for more than $700 million. Breed alleged fraud and misrepresentation of financial data by AlliedSignal.

For lead defender Steven D. McCormick, a partner at Kirkland & Ellis in Chicago, there was one key to overcoming these unfavorable odds: humanizing the corporate defendant. It worked. In March, after a seven-week trial, the jury issued a defense verdict for AlliedSignal.

When representing a big company in a complicated transaction, “there is nothing more important than putting on a human face,” McCormick said. While that's a trial lawyer mantra, it is more important in some cases than others, he said. “I would say that was a huge driver in this case: the human face on the corporate defendant in this hometown situation.”

“Buck stopped with me”

The defense witnesses were five senior Honeywell executives who negotiated the deal and who traveled to Bartow to “tell their stories,” said McCormick. Key among them was Larry Bossidy, retired Honeywell International chairman and CEO. “It was his deal. He told the jury that ‘the buck stopped with me.’” McCormick said. “To hear that from him, for us that was so key. They really got to hear the side of the story from the people who were doing the negotiations.”

Notably, the executives had been gone from Honeywell for years and had no interest in the case or the company, McCormick said.

The strategy could have backfired if the jury didn't like Bossidy and the others, McCormick said. The plaintiff's lawyers spent considerable time talking about the defendant's size and the executives' incomes, he said.

The lead plaintiff's lawyer, John W. Frost II of Tamayo Sessums & Aranda in Bartow, was not available for comment.

The defense won partly because it kept its case simple, though the transaction at issue was very complex, McCormick said. The business AlliedSignal sold to Breed had about $1 billion in annual sales and operated all over the world, McCormick said. The transaction unfolded over about a year and the allegations were “extraordinarily complicated accounting and financial issues,” he said. “We boiled our defense down to one sentence: AlliedSignal told the truth and Breed's own documents prove it.”

Not only was the defense theme simple, but its case was scaled down compared to the plaintiff's, he said. The plaintiff's case took four weeks; the defense, two. The plaintiff introduced 380 documents, the defense entered 170. The plaintiff played 25 hours of video deposition and the defense played six hours, McCormick said.

“At every point, we just worked to keep everything as short and simple and to the point as we could,” he said.

Streamlining the case for trial was the biggest challenge, he said. It can be painful to eliminate material from trial, particularly if it's useful and you've invested time and effort to develop it, he said.

“But when you come down to the end, and you start to put all these things together, you've got to throw everything off the train except what you absolutely have to have to win,” McCormick said.

“Lawyers are slaves to the idea that it's just one more witness or five more documents and we could make this point about what happened,” he said. But if you give in to that way of thinking, instead of a crisp, lean two-week case you've got a four-week case where the jury has lost focus, he said.

McCormick, the senior lawyer on the case, led an in-court trial team of 13 lawyers, including Kirkland partners Eugene F. Assaf and Craig S. Primis, as well as Benjamin H. Hill III from co-counsel firm Hill Ward & Henderson in Tampa, Fla.

Steven D. McCormick

Practices