Come Together (Again)

Susan Hansen

Corporate Counsel

09-01-2012

This past May turned out to be an extra merry month for the Milwaukee litigation boutique Gass Weber Mullins. Kicking off the calendar, name partner J. Ric Gass scored a resounding defense win for hospital insurance giant HMA Inc. in a medical malpractice trial in Oklahoma state court. Not only was the May 2 decision to dismiss all charges unanimous, but jurors made up their minds with lightning speed. Total deliberation time prior to verdict: a mere eight minutes. "It was the quickest decision I've ever gotten," says the 69-year-old Gass.

Meantime, name partner Ralph Weber, 55, was leading the charge in a five-week trial in Wausau, Wisconsin, that pitted client Aqua Finance Inc. against its former accountants at Baker Tilly Virchow Krause in Gass Weber's biggest case so far this year. The result? On May 31 jurors ordered Baker Tilly to pay Aqua Finance $50 million for negligence and breach of contract—and Gass Weber capped off the month with another major win.

Of course, May wasn't the only standout month for Gass Weber. It's actually had a whole series of exceptionally good months lately—as part of an all-around stellar year. Since August 2011, the firm has put together a 7-0 streak of trial wins in courts from Maui to Oklahoma to Maine on a diverse mix of insurance defense matters and assorted other commercial cases.

Not bad for a litigation shop with just a dozen lawyers. Then again, from the start, the eight-year-old Gass Weber's founding partners have believed that being small is a virtue rather than a handicap. One obvious benefit is that the firm's clients and their matters get far more personal attention from Gass, Weber, and other senior partners. "We're a lot more hands-on," says Weber, who credits the firm's "upside down pyramid" (nine partners and three associates) model.

Just as importantly, he and other partners are convinced that the firm's compact size gives it an edge in the courtroom. Indeed, they contend that being small has not just helped make them more efficient. It's also required them to be more innovative in the use of jury research and courtroom visuals—and thus increased their effectiveness at trial.

Judging from its recent trial record, not to mention the list of brand-name clients it represents—including Cargill Inc., American Cyanamid Company, Trek Bicycle Corporation, and Coca Cola Enterprises Inc., as well as Northwestern Mutual Life Insurance Company and other major insurers—Gass Weber must be doing something right.

Robert Burns, general counsel and VP at Waterloo, Wisconsin–based Trek, seems to think so. He notes that along with select product liability cases and various contractual disputes, Gass Weber successfully handled the defense in a high-profile 2010 breach of contract suit brought by cycling star (and ex-Trek celebrity endorser) Greg Le Monde. (The case ultimately settled a month before trial.) "I turn to them for my most serious complicated matters," says Burns, who adds that in his view Gass Weber is just the right size. "They're large enough to have the resources you need to throw at a problem," says Burns, "and small enough so I can pick up the phone at any time and speak to whoever I need to."

In one sense, the current Gass Weber is just a reincarnation of another Milwaukee litigation boutique—Kravitz, Gass & Weber—where several of the firm's founding partners had worked during the early 1990s.

The group had kept in touch on and off after they went their own ways. But there had never been any discussion of getting back together until they ran into each other at a Wisconsin Legal Journal awards ceremony in 2003 honoring Gass and other leaders in the state bar. "We all talked about [how Kravitz Gass] was really the golden time of our careers," recalls Gass Weber founding partner Brian Cahill, who was working in-house in Racine at the time, as vice-president and associate general counsel at equipment manufacturing giant CNH Inc.

Cahill loved a lot of things about his job, but he notes that after a decade at CNH, he was spending most of his time on management—and missed the excitement that comes with hands-on trial work, along with the small-firm camaraderie at Kravitz Gass.

Thus, in the weeks after the awards ceremony, he sent out follow-up emails to his former partners to see if they might actually want to give a new trial-focused boutique a go. The response was enthusiastic, and soon serious planning was under way. And in early 2004, the then-10-lawyer Gass Weber opened for business in a renovated loft space in Milwaukee's historic Third Ward district.

From the start, the firm's founding members—including Cahill, Gass, Weber, and late name partner Thomas Mullins—were in agreement on a couple of core principles. First, they were determined to keep Gass Weber small enough so that the highest work quality standards could be maintained, firm politics would be kept to a minimum, and partners would always know the names of associates and staff. "We took a blood oath that we wouldn't get bigger than one floor," recalls Gass.

Second, Gass and other founding partners weren't interested in merely filing motion after motion in matters that were destined to settle. They didn't want to be mere litigators. They actually wanted to try cases, and thus were determined to stick largely to the types of matters that would put them in front of juries.

Given Gass Weber's commitment to staying small, the focus on trial work has obviously taken some doing. Especially in big complex cases that involve thousands of documents and intensive discovery, such as the malpractice suit that Aqua Finance brought against the accounting firm Baker Tilly and the pair of E. coli contamination–related liability matters it defended in federal district court in Maine last fall for ground beef processor Fairbank Farms.

To meet those sorts of challenges, heavy-duty courtroom experience certainly helps. The Gass Weber roster includes two former Wisconsin state judges—Michael Brennan and John Franke—and, collectively, partners there have taken literally hundreds of cases to trial. Indeed, Gass alone says he tried more than 300 cases over the course of his career.

Partner Shawn Stevens notes that the firm makes a conscious point of drawing on and applying all that experience to matters. "We really trust each other's judgment," says Stevens. To wit: When major matters like the Aqua Finance and Fairbank Farms cases come in, lawyers routinely gather in the "union"—a main meeting room featuring walls lined with whiteboards—to brainstorm on strategy. "I sort of think of it as a collective melting pot of the best and brightest ideas," say Stevens.

In gearing up for major trials, Gass Weber lawyers point out that they have no choice but to be as efficient as possible. Thus, not surprisingly, they're also big believers in leveraging cutting-edge technology to help them prepare their cases. One example: the firm's document management system—which enables them to digitally store and search virtually every piece of paper that comes in.

That system definitely came in handy during the lead-up to its win in the Aqua Finance trial, which involved more than 100,000 documents and pitted Gass Weber against a firm almost three times its size—Chicago-based Williams Montgomery & John. Despite Gass Weber's limited manpower, the Aqua Finance trial team was able to zero in on internal emails and other correspondence that proved that Baker Tilly had committed a major accounting error. It had also failed to tell Aqua Finance, which provides credit for water treatment and conditioning systems, that it had made the mistake for more than a year. Then, instead of trying to fix the problem, it wound up dropping Aqua Finance as a client. "We showed that they just walked away, leaving Aqua Finance high and dry," says Weber. Because of that mistake, Aqua Finance was unable to access the credit market, adds Weber, which cost it tens of millions of dollars in lost revenue.

Given that the company had asked for damages of more than $325 million, Aqua Finance CEO Bob Chadwell says he was a little disappointed with the jury's $50 million award. Overall, though, he believes Weber and his trial team did an impressive job. "They were a well-oiled machine," says Chadwell, who adds that he was particularly happy with the pains Weber took to keep him in the loop. "He was constantly on the phone with us," says Chadwell. "He made you feel like you weren't just a client, but a member of the team."

Gass Weber lawyers are equally proud of the firm's forensic efforts in the lead-up to the trial it handled last November for beef processor Fairbank Farms. There, the bulk of the credit goes to Stevens, one of the country's top experts in food safety law, who spent months poring over epidemiological records from the Centers for Disease Control and dozens of state and local health departments to try to trace the source of the 2009 E. coli O157:H7 outbreak that had sickened plaintiffs in the case. "There were literally tens of thousands of records," recalls Steven, who had to submit a flurry of Freedom of Information Act requests in order to obtain all the information he wanted. Thanks to his efforts, at trial lead defense counsel Weber was able to offer conclusive evidence showing that the tainted meat had originally come from a slaughterhouse operated by Greater Omaha Packing Company Inc., one of Fairbank Farms's suppliers. The result? Last November jurors in federal court in Portland, Maine, unanimously found that Fairbank was not responsible for the outbreak and fully indemnified the company from all plaintiffs claims.

Of course, gathering good evidence is just one part of the trial preparation process. As Cahill notes, weaving that evidence into a clear compelling story to present to jurors is just as critical. "Our goal is to take the complex and make it simple," says Cahill. "That's what we strive for in every case."

They also take care to make sure that the story lines they develop will actually work. Accordingly, before almost any major trial, Gass Weber lawyers routinely conduct focus groups to test how well their main themes, facts, and witnesses (using videotaped depositions) might play with real jurors.

Indeed, Gass says that he conducted three separate focus groups before going to trial in the first of a series of medical malpractice cases he's defending for HMA, the insurer of Dr. Daniel Castro, an Oklahoma ear, nose, and throat specialist charged with performing unnecessary surgery.

That effort appears to have paid off. So far he's 2-0 in the Castro matters, including the eight-minute verdict he won in May and another defense win in a trial in Oklahoma this past February. In that case, the jury took a full 40 minutes before issuing its decision for Castro.

In getting ready for trial, Gass Weber lawyers also tend to spend large amounts of time dreaming up creative ways to hammer home key points and evidence—and keep jurors visually engaged. That was definitely true in the Aqua Finance case, according to partner trial-team member Amelia McCarthy. "It was a huge deal for us," says McCar­thy, who notes that the visuals included everything from numerous old-fashioned easels holding giant flip charts to "tons of blow-ups" of PowerPoint slides. Gass Weber also wheeled in its own 60-inch television into the courtroom to better show off key depositions and other exhibits. "We really tried to mix it up as much as possible," says McCar­thy.

Gass, for his part, is such a believer in the benefits of visuals that he prepares his own slide shows and incorporates them into his cases at virtually every possible juncture, including opening and closing arguments. "That way, whether jurors are left-brained or right-brained, we'll reach them," says Gass. Among his creations: a slide with a starry black outer-space-like background that he deployed in one recent trial to undermine the other side's credibility. The text on the slide stated that his main opposing counsel was "in the twilight zone."

Clients, such as insurers RSUI Group Inc. and Physicans Insurance Company, seem to appreciate Gass and his partners' creativity. So much so that they routinely bring in Gass and Cahill as consultants on matters in which Gass Weber isn't directly involved to help them map out trial strategy and even work with their outside defense teams to hone case presentation. "They've got a unique, powerful way of putting on evidence," says RSUI VP John Graham.

Gass, Cahill, and other partners say they've been fortunate to have a strong, diversified client base, which has continued to keep them busy. In fact they've recently been so busy that they've just hired a fourth associate, says Cahill, and will likely bring in a fifth in the next several months. That would push the total lawyer count to 14 lawyers. The good news is their current office has a little room left to expand. "We can probably fit at least 20 lawyers," says Gass. So there's no immediate danger that he and other partners will break the oath they took to keep Gass Weber contained on a single floor.