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staff reporter Attorney: Theodore M. Grossman firm: Jones Day case: Lucier v. Philip Morris Inc., No. 02AS01909 (Sacramento Co., Calif. Super. Ct.) if one may be permitted a baseball analogy, Big Tobacco needed a stopper. Given its scorecard for jury verdicts on the West Coast (0-6), and particularly California (0-4), the industry needed a lawyer who could stride into Sacramento, Calif., and pitch a shutout. Theodore Grossman turned out to be the man. Representing R.J. Reynolds Tobacco Co., co-defendant with Philip Morris, Grossman acted as lead attorney for their coordinated defense-perhaps because, without his help, Michael J. Piuze had socked Philip Morris with two multibillion-dollar verdicts in California the last two years. [See story, Page S13.] On Feb. 6, following a three-month trial, the jury handed the companies a resounding victory. Demonstrating his own preference for basketball, and noting that the jury deliberated only 2 1/2 days, the 53-year-old lawyer called it “a slam dunk.” This was his third full tobacco trial and third win, but the first in California. It was important, he said, because the plaintiff used the “A” list of anti-tobacco company witnesses; the market (and many analysts) had assumed another loss; and, yes, because it was California. What made it “potentially more difficult” than his previous cases, he said, “was the perception, grounded in reality, that California juries are more difficult.” He attributes this largely to Proposition 99, which imposed a tax on cigarettes to create anti-smoking advertisements. The problem, he said, is that these evolved into anti-tobacco company ads, which polluted the jury pool. Still, when it came to trying a case in an inhospitable venue, Grossman had been there before. His first tobacco trial was in Florida in 1997. It was very different from the early days, when the industry was seen as invincible and judges or plaintiffs routinely dismissed his cases. Grossman, who has represented Reynolds since 1985 and is one of its national coordinating counsel, had seen the tide turn in the 1990s. Plenty of cases were, and still are, dismissed. But by the time he tried the one in Florida, which was decided on Halloween, the tobacco industry had reason to be scared. The companies had just pledged $368.5 billion to fund a global settlement with the states (though it fell apart and was replaced by the Master Settlement Agreement the next year). Florida had fashioned its own settlement, to the tune of $11.3 billion. And Grossman’s opponent was Norwood “Woody” Wilner of Jacksonville, Fla.’s Spohrer Wilner Maxwell & Matthews. A year earlier, Wilner had won a $750,000 verdict against Brown & Williamson that became the first-and only-judgment a tobacco company has ever paid. In this context, Grossman’s victory in the case brought by Florida plaintiff Joann Karbiwynk was deemed important enough to merit selection as one of the NLJ’s top defense wins of the year. When he got to Sacramento, Grossman had a pretty good idea what his opponents would do. He knew that plaintiff Laurence Lucier’s attorneys had consulted with Piuze of Los Angeles, who had modeled his case after the two California successes of Madelyn Chaber of San Francisco. Chaber, in turn, had built hers on the foundation laid by Wilner. This allowed him to anticipate the plaintiff’s themes. “You know what the theme is,” Grossman said, “because these plaintiffs’ lawyers are using a consistent pattern. And that’s helpful.” He knew that his opponents would argue, as Wilner had, that their client accepted responsibility for his choice to smoke. In Grossman’s view, this argument amounted to lawyers improperly testifying for their client. So when he deposed Lucier, he questioned the plaintiff thoroughly about his choices. The point, Grossman explained, is that to exploit this weakness effectively, you have to know your own themes long before you take your first deposition. And it’s important to begin building them in voir dire and weave them right through closing arguments. The key to avoiding this vulnerability, he added, is viewing each case with fresh eyes. You have to “think through the themes as if they were your first case.” In recurring litigation, “the temptation to fall into a pattern is huge”-especially when an approach has succeeded in the past. Had he succumbed to it, he said, “we would have had a seventh loss on the West Coast.” Lucier was aware of the risks and his disease was not caused by smoking: these were his big themes. The most important evidence, Grossman continued, was his cross-examination of the plaintiff. He was able to establish that Lucier’s testimony was in conflict with that of many of his own witnesses, including his brother. He kept Lucier on the stand for more than a day, he said, and he knew there were associated risks. “Some people think if you spend a lot of time cross-examining a victim, the jury will hold it against you.” As long as you “stay on point and don’t make ad hominem attacks, and demonstrate your themes-and the inconsistency between the plaintiff’s testimony and the facts-the jury will hold the plaintiff accountable rather than the lawyer who asks the questions.” Besides, he said, it’s more important for the jury to believe you than like you. The jurors’ body language convinced Grossman that they were dissatisfied with Lucier’s testimony. The defense lawyer also used cross-examination of the plaintiff’s experts to build the credibility of his witnesses. When he cross-examined British epidemiologist Richard Doll, an effective plaintiffs’ witness in previous trials, Grossman established that the risks were long known and that Reynolds had followed many of Doll’s recommendations-for which he’d applauded the company. This helped bolster the testimony of a company vice president. During his closing argument, Grossman hammered the credibility not only of the plaintiff but of one of his lawyers, Gary Paul of Santa Monica, Calif.’s Paul & Janofsky. This was another calculated risk, Grossman acknowledged, but “you can’t win a difficult trial without taking risks.” He allowed that Paul was “likeable” and “competent” and did well with “a weak case.” But his opponent had made misleading statements in his opening “to focus the trial on matters that didn’t relate to the plaintiff,” he asserted. During his own opening, Grossman had pulled out a flip pad and marker to record promises he vowed to return to during his closing. Now he aimed to contrast promises he’d kept with those his adversary had not. His pad highlighted the evidence that he said proved Lucier never had lung cancer. He showed videotapes and transcripts of the relevant testimony. “And it’s the evidence, not the arguments, that counts, That’s why throughout my closing I’ve been putting up the evidence before you,” he told the jury. Then he turned to his opponent: “In his opening argument, I’m sure you recall, Mr. Paul told you this case was about responsibility. He said, ‘Now, did [Lucier] make mistakes? Sure. Did he take responsibility for his mistakes? Sure he did.’ ” But Paul had changed the terms in his closing, Grossman argued. “ Mr. Paul in his closing said Mr. Lucier takes responsibility for having been misled. Cop-out. That’s not responsibility.” He showed a videotape of his cross of Lucier. “And as you’ve told us three times, you take no personal responsibility for your smoking at all? Isn’t that correct?” “Correct,” Lucier replied. Grossman cited instances in which the plaintiff was “not being straight with us.” Lucier’s relatives testified that he’d received an e-mail warning about the dangers of smoking. Asked to produce it, Lucier had maintained that he couldn’t find it. He had agreed to allow experts to search his computer, but then turned over a different computer without telling them. “The weakest part of the case was the plaintiff himself,” a juror told The Sacramento Bee. Citing the computer episode, she added: “To me, that was very damaging. He was hiding something.”

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