WINNING – Successful Strategies from 10 of the Nation’s Leading Litigators
The National Law Journal- By Margaret Cronin Fisk
When trial lawyers get together, they always tell war stories of cases they have won or trials that went sour. For most attorneys, there is either an even balance between victories and losses or a lamentable record of juries’ continually favoring the other side.
In each city and state, however, there is a small group of attorneys who rarely have to talk about losing at the jury level. They go years without experiencing that moment every litigator dreads – the moment jurors say they did not believe you or your client – and hit your client with a massive judgment, or deny your client the damages sought, or cause your client to be sent off to prison.
Each year, The National Law Journal selects and profiles 10 trial attorneys who have established themselves as among the nation’s best at avoiding those moments.
The profiles concentrate on how each attorney handles a lawsuit, through discovery and every step of the trial, using a recent major win as an example. The list of attorneys profiled each year is governed by two criteria: The attorney has amassed a long record of favorable courtroom victories and has won at least one recent significant jury trial.
The lawyers profiled this year have long distinguished themselves at trial work. Brian J. Panish, for instance, won the largest verdict ever against a tire manufacturer – $55.23 million against Continental A.G., makers of General Tires.
Ronald Cabaniss of Orlando, Fla.’s Cabaniss, Smith, Toole & Wiggins successfully defended Ford in a rollover case involving an Explorer with Firestone tires, despite the Ford/Firestone maelstrom of publicity.
George P. McAndrews of Chicago’s McAndrews, Held & Malloy won a $20.9 million verdict in a patent infringement action that was nearly quadrupled to $78 million after post-trial motions.
Some of the attorneys are specialists.
Ellen S. Simon of Cleveland’s Simon Law Firm, for instance, represents only plaintiffs in employment civil rights actions.
But others will represent anyone in any type of case. Mark S. Werbner of Dallas’ Sayles, Lidji & Werbner handles civil actions for plaintiffs and defendants and represents defendants in criminal trials as well. Rusty Hardin of Houston’s Rusty Hardin & Associates does the same.
One attorney – Michael D. Jones of the Washington, D.C. office of Chicago’s Kirkland & Ellis – works at one of the nation’s largest law firms. But most are from smaller litigation boutiques.
The cases detailed vary from plaintiffs’ wins in breach-of-contract, wrongful-death and employment discrimination cases to defense wins in civil cases involving products liability and conspiracy.
Their modes of operation vary as well.
Milwaukee’s Robert L. Habush of Habush, Habush, Davis & Rottier believes in taking as many of the depositions himself as possible. Werbner, who typically is called in just before trial, relies on others to do all discovery.
Werbner uses focus groups and mock trials. Hardin believes focus groups are useless because nothing can duplicate how a trial will play out.
But there are some similarities. Each of the lawyers believes in keeping the case simple, breaking down even the most complex matters so the jury can understand. Each of the lawyers believes in dogged pretrial preparation, even when such preparation is conducted by co-counsel.
They all believe in controlling the focus of the case, so no matter what the other side says or does, the jury will find their side’s explanation the more credible.
Although the profiles cover only one counsel per trial, it should be noted that these attorneys rarely work alone. Bondurant, for instance, was accompanied by Richard Game of his firm: Jeffrey D. Horst of Atlanta’s Kresolin & Horst; and John Johnson and William Harrell of Tampa, Fla.’s Trenam, Kemker, Scharf, Barking, Frye, O’Neill & Mullis.
Panish came in late to the lawsuit against Continental General Tire, after attorney Taras Kirk of Los Angeles’ The Kirk Law Firm had completed the preliminary – and, as it turned out, decisive – research linking the tire’s failure to manufacturer process. Jones shared lead counsel duties with Donald E. Scott of the Denver office of Chicago’s Bartlit Beck Hermon Palenchar & Scott.
A caution: These are war stories told by the winners and generally reflect their view of the case and tactics.
In several of the cases, there is no guarantee that the result will not be reversed. Six of the cases are in post-trial motions or on appeal and the lost at trial may yet win.
He likes to beat the defense to the punch
ATTORNEY: Brian J. Panish, 43
CASE: Lampe v. Continental AG, BC3131 (Super. Ct., Los Angeles)
In any trial, a plaintiffs’ attorney has to take on the primary defense contentions in the case-in-chief, says Brian Panish. "The plaintiff has the burden of proof, so you have to tell the jury what the defense will say, then totally destroy it before they can put it in."
In this year’s big-money products-liability action against Continental General Tire, involving a tire blowout, the defense claimed that the tire was not defective and that it failed because of some localized trauma several hundred miles before the accident.
Panish took on this defense immediately in his opening statement, calling it "the phantom impact" defense. Because he ridiculed the defense contention, he says, "by the time they put on, it was going nowhere." The jury wound up awarding his clients $55 million.
This was the latest in a series of substantial courtroom victories for the attorney. In 1999, Panish won one of the largest jury verdicts ever – $4.9 billion against General Motors Corp. in an auto products action.
Overall, he has had 17 verdicts of more than $1 million, eight of which were in excess of $10 million. He’s also had dozens of multimillion-dollar settlements.
In the General Tire case, Panish represented Cynthia Lampe, 28, who was injured in a June 1996 accident. Lampe was driving a 1993 Ford Taurus near San Bernardino, Calif., when "the left rear tire tread separated and came flying off the tire, causing her to lose control of the car," says Panish. The Taurus flipped over and Lampe was rendered quadriplegic; her mother, Sylvia Cortez, was also injured in the accident.
Lampe and her parents sued Continental, maker of the AmeriTech ST tire on the Taurus, contending defects in the design and manufacture of the tire.
The tire on the Taurus was manufacturered at General Tire’s Mount Vernon, Ill., plant, says Panish. The plaintiffs claimed that during the manufacturing process at the plant, management routinely and "intentionally swept up the floor and put waste back into the rubber mix." This contaminated the tires and led to the separation, he says. The plaintiffs also contended that "the insulation strips on the tires were not thick enough" and that General Tire "didn’t use belt wraps to prevent tire separating."
Panish says that he began this highly technical case as he always does, by establishing a simple theme in the opening statement: "that this tire should not have failed," he says. "You should be able to expect to drive a car and your tires won’t fail until you run over something." The defense, he says, "tried to hammer home that these tires had 48,000 miles on them." The plaintiffs countered that the number of miles was not the proper standard; the tread depth was key. "Only 27% of the tread had been used," says Panish. The tire failed because "General Tire’s manufacturing practices led to contamination of the tires."
Panish used extensive visual and physical exhibits. "We brought in the tire and tread itself." He had an expert – who used a 600-power microscope hooked up to a projector – take digital photographs of the tire "so the jury could see the contaminant." The plaintiffs brought in tires with alternative designs and videos of testings of the Taurus. "We also brought in visuals of the spinal cord, to show her injury."
But he did not reserve his exhibits for the jury alone. For each motion in limine, "I prepared a separate power point presentation on why evidence should be admitted."
This reliance on demonstrative evidence is a basic part of his trial presentation. "It’s harder to persuade someone of an esoteric concept without something you can hold or see."
Panish’s first witness in his case-in-chief was a highway patrol officer who had been at the scene of the accident. In the trial against General Motors, he notes, he started the same way.
"I like to put them on if I can," he says. "They’re independent. They have position on authority, which means they’ll draw respect." Also, he says, "police officers are experienced witnesses, so they won’t be too nervous on the stand."
Through the police officer, Panish not only established how the accident happened, but elicited support for the plaintiffs’ point that the depth of the tread on the tires should have precipitated a blow-out.
During his case, he called representatives from the defense, including the Mount Vernon plant safety manager, Craig Stowers. "I try to call everyone I can from the defense," he says. His intention is to "get them on cross," before defense counsel can present the defense and witness in the best possible light.
Before examining Stowers, he says, he had read through thousands of pages of testimony, documents and depositions. He relentlessly attacked on direct, bombarding Stowers with excerpts from his own depositions in other cases involving General Tire products and in previous depositions or in-court testimony in Lampe.
He confronted Stowers with statements from other workers at the Mount Vernon plant, who talked about how lax the quality-assurance process was and how the cleanup crew routinely dumped wastes into the rubber mix.
On direct, Panish had the witness confirming that few of the tires built at the plant were inspected.
On redirect, Panish had the witness backtracking on several statements he had made and had him admit that before Lampe, he was unaware of claims that the plant’s janitorial service was putting swept-up waste back into the material used to build tires.
Panish pursued these points with the defendant’s chief expert on tires, Ed Morant. Morant, a former General Tire worker, said the tires were not contaminated. He testified that the polypropylene found in the tire after the accident could not have come in during the manufacturing process because there was no polypropylene in the plant.
Blowing in the wind
He suggested the residue in the Taurus tire may have been blown there by the wind. Panish confronted him with Stower’s testimony that polypropylene was in the plant.
But first, Panish had locked in the witness by getting him to agree that tread separations can result in loss of control of a vehicle and that discarded materials mixed into the rubber would effect the adhesion of the rubber on the tires.
The most poignant and compelling moment of the trial came when Lampe appeared. She was only in court when she testified. Her injury made it difficult for her to be there, Panish says. Seeing her once also had a stronger impact. His examination of Lampe was brief, lasting no more than 45 minutes.
He showed pictures of Lampe before the accident in contrast with the way she was now. "She was very attractive, slender," he says.
As a result of the accident, "she has gained a ton of weight. She looks nothing like she used to." Since the accident, Lampe requires full-time attendant care and has only minimal use of her arms and hands.
On April 13, a Los Angeles jury ordered Continental General Tire to pay the plaintiffs $55.32 million, including $49.85 million to Lampe. The jury found defects in the manufacture of the AmeriTech, but no design flaws.
The defendant’s post-trial motions were denied.
GM has appealed the verdict.
–ARTICLES BY MARGARET CRONIN FISK