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Drawing on Lessons from Wal-Mart Battle, Lawyer Defeats Bigger Giant
The David vs. Goliathstory line works for Jessica Grant except she's 6 feet tall.
The Sher Leff partner recently won a $236 million judgment against global oil behemoth Exxon Mobil for her Liliputian-by-contrast client, the State of New Hampshire, after a three-month trial.
The win comes eight years after she helped secure a$172 million verdict against Wal-Mart in a wage-and-hour case.
There aren't many lawyers with a nine-figure verdict to their name let alone two, and in unrelated areas of the law. But Grant, 44, has a thing for slaying giants.
"We had nowhere near the resources of Exxon Mobil," Grant said. But she says she learned a lesson from the Wal-Mart trial: "If everyone is working efficiently, you can out-maneuver anyone."
In the Exxon case, a jury took just 90 minutes last month to return a verdict in her favor and against opposing counsel from Weil, Gotshal & Manges. Jurors found Exxon had been negligent when it added fuel additive MTBE to gas between 1988 and 2005 and failed to warn consumers of its dangers.
Witnesses testified that Exxon and other oil companies could have used a less costly chemical than MTBE, which is highly soluble in water, allowing it to travel farther in ground water and resist biodegradation.
Plaintiffs say 5,590 wells there have unfit-to-drink levels of MTBE, which oil company research shows elevates risks of brain tumors and cancers in mice and rats.
The jury's verdict is the third-biggest in the U.S. so far this year, according to Bloomberg.
And the verdict came after 21 defendants had already settled prior to trial.
A 22nd defendant, a Houston-based unit of Venezuelan Citgo Petroleum Corporation, agreed to pay $16 million on the first day of trial, after Grant devoted one-third of her three-hour opening statement to her case against it.
Grant's two co-counsel Krishna Juvvadi and Sean Kiley and two paralegals were up against a 10-lawyer team, by Grant's count, led by James Quinn of Weil, Gotshal and Manges.
Quinn declined to comment for this story, but in an interview with sister publication The Litigation Daily he was sharply critical of Superior Court Judge Peter Fauver's management of the case, including his apportionment of Exxon's liability based on Exxon's share of the state's market.
"The appellate record will resemble a free-fire zone," Quinn told The Litigation Daily.
Grant's first huge win came in 2005, when she was working for plaintiff attorney Fred Furth and led the trial team in Savaglio v. Wal-Mart Stores, a class action on behalf of 116,000 employees who claimed they were denied meal and rest breaks. An Alameda County jury returned a $172 million verdict, including $115 million in punitives
Grant said the verdict didn't make her rich: "I got my salary," she says, and left before any payout. (In 2007, a colleague on the case sued Furth, claiming he cheated her and others out of promised bonuses.)
Grant went to Taylor & Co., where in 2008 she successfully defended Intel Corporation in the Northern District of California against $450 million of fraud, unjust enrichment, breach of contract and patent claims.
In 2010, while working on antitrust litigation at plaintiffs shop Pearson, Simon & Warshaw, she was recruited by Sher Leff to take over its New Hampshire case and take it to trial.
What was unusual about this trial was we were arguing motions almost every day," said Grant, who said she rarely stopped working before midnight for the entire length of the trial.
Exxon brought seven motions for mistrial and filed 16 motions for summary judgment, Grant said.
When she stepped in, she was outnumbered and at risk of drowning in motions. So she went on the attack. "You have to go on the offensive, be aggressive."
Grant said she barraged Exxon with motions to preclude Exxon's exhibits and their experts from testifying.
"It was constant motion. If they weren't bringing a motion, we were. It is literally like hand-to-hand combat."
FERRET OUT WEAKNESS
When Grant took over the case, she identified a problem: New Hampshire planned to seek damages based on a stricter standard of contamination than its own regulations allowed. State laws permitted MTBE contamination that amounted to 13 parts MTBE per billion parts of water yet it sought damages from oil companies based on 0 ppb.
That would have seriously weakened New Hampshire's case, said Grant. So she went with the 13 ppb standard, and stripped out some of the causes of action.
"I came in and narrowed it down," she said. She said she also cut the settlement demand down by $1 billion. (Exxon Mobil, she says, offered nothing.) Grant says she also works to ferret out any weaknesses in her witnesses.
"A lot of attorneys don't prepare their witnesses," said Grant. "I thoroughly cross-examine them. Clients will tell me, 'You were so much harder than [opposing counsel]!'"
KEEP IT SIMPLE
Grant attributes her victory against Exxon to a trove of internal company records showing its own scientists' concerns about the toxic chemical.
One of those records was an April 19, 1985 memo summarizing the conclusion of a 15-month company-wide study evaluating the risks of adding MTBE: "We recommend that from an environmental risk point of view, MTBE not be considered as an additive to Exxon gasolines on a blanket basis throughout the United States."
But evidence doesn't speak for itself and that's where Grant's undergraduate background might have helped. Before attending law school at the University of San Francisco, she majored in rhetoric at the University of California at Berkeley.
"This [case] deals with toxicology, geology, hydrology," said Grant. "My job is to make it easily digestible and convincing. My argument was that Exxon absolutely knew the consequences" for a state that relies on wells for drinking water. "You cannot make the case convoluted."
Grant, who grew up in Orinda and now lives in Lafayette with her greyhound, says she likes to simplify the terms and testimony for the jury. She cut her expert witness list from 17 to 5, and she broke down words to their most elementary meanings: "remediation" became "clean-up"; "treatment", "cleaning; "preponderance of the evidence," "more than 50 percent."
One juror's post-mortem of the trial seems to vindicate Grant's approach.
Dawn Booker, a 43-year-old mother in Pembroke, New Hampshire, said in an interview that Grant's examination of nearly every witness impressed her. Exxon's legal team divvied up the witnesses, and Booker didn't find them as convincing.
"Jessica actually explained a lot," said Booker. "By the time we got done with it, we knew everything."
This article originally appeared in The Recorder.