Trial Tips from America's Top Litigators

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"This is the best that I could do at 6:15 in the morning in a hotel in DC preparing for a trial on 3/21 in Baltimore," commented Edward F. Fernandes, a partner with Akin Gump in Houston. He was responding to our email using his Blackberry wireless handheld.


Why are litigators like Mr. Fernandes so busy? Because they have managed to convince juries all over America that their clients' points of view are correct. Moreover, some of their trials have involved large amounts of money. Mr. Fernandes represented a major international software company in a $1.3-billion patent-infringement and trade-secret dispute and a major manufacturer in a $270-million antitrust lawsuit—to name only two of his cases.




Bill Price, head of trial practice at the L.A.-based Quinn Emanuel, won a verdict in excess of $250 million. Over the past few years—Jan M. Conlin, a partner with Robins, Kaplan, Miller & Ciresi—was co-counsel in two cases whose combined verdicts and settlements neared $1 billion.


The preceding are just some of the more noteworthy notches in these trial attorneys' belts.


Being successful in the courtroom is just as much art as science. Technology can help, but in the final analysis, the courtroom still features one lawyer making his or her client's case to a jury of his or her peers. Here are some suggestions from lawyers who have a particular knack for making their cases well.


Bill Price, head of trial practice at Quinn Emanuel

"Focus on how your case will appear to a jury and a judge."


That key perspective should be used to review every facet of your case, including "how your client behaves in deposition," says Mr. Price. "For example, you don't want your client saying 'I don't know' or being evasive when the average person would think he should give a straight answer."


"You also don't want to get caught in stupid discovery fights," Price adds. He is opposed to a rancorous atmosphere in which litigators object to, for example, every document request simply because they want to make life difficult for the other side. "Figure out what you need to do to win a case, and fight the fight. You look better to everyone," particularly the judge and jurors, when "you appear cooperative."


And finally, William Price suggests dressing well before you try your case, but not too well. "Dress for respect," he concludes, but don't dress in a way that makes the "jury think you're a high-priced trial attorney."


Edward F. Fernandes, Partner, Akin Gump

"Respect the jurors."


With regard to making your case to jurors, Mr. Fernandes' advice is simple. "Respect the jurors," he says. "Talk to them. Don't give them a speech. And don't ever underestimate their collective wisdom. If a witness is a jerk, cross your legs and keep him or her on the stand until they hang themselves. Eventually, the jurors will see the witness's real personality."


"Be yourself, the jurors can tell if it's an act. And don't take yourself too seriously. Keep your client's interests first, and the rest will follow," concludes Mr. Fernandes.


Jan M. Conlin, Partner, Robins, Kaplan, Miller & Ciresi

"Get your hands dirty on the technical details."


Ms. Conlin has been lead counsel or co-counsel on some of the largest intellectual property (IP) cases to see the inside of a courtroom. In terms of a litigation practice, she believes "IP law will continue to be a very high profile and highly energetic area of law." What do lawyers need to practice in the area? An open perspective and willingness to learn.


"You have to have some sort of aptitude for science," she adds. "For example, in my career, I've had to learn how Microsoft's Windows products [and the Internet] operate on a technical level…how postage meters operate and medical devices function. You have to like getting your hands dirty on the technical details."


Part of what Ms. Conlin appreciates about IP law is its intellectual challenge, but also the long game of trying to figure out the best way to win. "There are a lot of ways you can win or lose a patent case, which makes it interesting. It's a chess game, and you have to figure out where you're going on move sixty-five before you ever move your first piece."


William G. Schopf, founding partner of Schopf & Weiss, LLP

"Admit wrongdoing, if it exists."


"A few years ago I tried a case in which we admitted that my client, a lawyer, had made a mistake while advising his client," begins Mr. Schopf. "We were also able to demonstrate that his mistake played no role in the alleged injury." The jury agreed. Mr. Schopf likes to use the preceding story to illustrate several trail practice points.


"Inflated egos and aggressive personalities rarely work in front of juries. What does work," he says, "is gauging what is really going on in the courtroom—what the jury cares about."


"I have found it best to admit wrongdoing, if it exists. A jury would prefer to forgive you for an error than reward the plaintiff for lying."


In one recent trail, Mr. Schopf had to contend with 10-million pages of documents and evidence from more than 40 depositions. In that case, he used technology to effectively wade through and edit the material and then display it using a multimedia presentation. "The result was a very powerful, focused, and clear presentation of the facts. After hearing testimony throughout several weeks, the jury took only 2.5 hours to return a verdict in favor of my client."


Robert C. Weber, Partner with Jones Day

"Work with your case's durable thematic narrative."


"The one common denominator in all really fine trial presentations is an obsessive focus on your fundamental case themes," instructs Mr. Weber. "And for that you need to develop early on a durable thematic narrative."


Mr. Weber is emphatic about the importance of creating the all-important case narrative and sticking to it. And the narrative must be relatively simple, with no more than two or three sub-parts. Once the case's theme has been created, it should be used to direct discovery, motions, voir dire, even the closing argument. At the end the jury should take away the exact same story you first introduced in voir dire. "It animates and governs everything you do," explains Mr. Weber. "It is the fundamental."


Jim Quinn, Senior Partner, Global Chair, Weil, Gotshal & Manges

"Focus on your key witness."


With regard to litigation advice, Jim Quinn's primary trial efforts almost always focus on the key witness. "Jury trials," he explains, "are simply about credibility. It's who the jury believes. If you can destroy or undercut the other side's main witness, you go a long way to insuring victory."


With that in mind, Mr. Quinn spends much of his trial preparation time researching the witness. "It may be an expert, but in most instances, it's usually the other side's main storyteller. It's critical to have an extraordinarily effective cross-examination of the witness. If you are successful in undressing that person, it increases the likelihood you'll win. It sounds simple," Jim Quinn concludes, "but it's not."


The next time you take on a case and it's headed for trial, consider the advice of this informal panel of expert litigators. Because in the final analysis, winning or losing is in your hands.


Click on the links below to read more about these attorneys and their accomplishments.


Bill Price, head of trial practice at Quinn Emanuel


Edward F. Fernandes, Partner, Akin Gump


Jan M. Conlin, Partner, Robins, Kaplan, Miller & Ciresi


William G. Schopf, founding partner of Schopf & Weiss LLP


Robert C. Weber, Partner with Jones Day


Jim Quinn, Senior Partner, Global Chair, Weil, Gotshal & Manges




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