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special to the national law journal jerry s. mcdevitt: The defense counsel’s attack on wrestler Nicole Bass required him to walk a fine line. He had to discount a woman’s claim of sexual harassment without making a personal attack. Attorney: Jerry S. McDevitt firm: Kirkpatrick & Lockhart case: Nicole Bass v. The World Wrestling Federation Entertainment Inc., No. 99-CV-5688 (E.D.N.Y.) in this corner is Nicole Bass, 230 pounds of muscled mass. She calls herself the world’s largest female bodybuilder and, for wrestling fans, the “Queen of Scissors.” In the other corner is the Pittsburgh lawyer Jerry S. McDevitt, a self-confessed workaholic and father of four who quips that he subsists on caffeine, nicotine and Styrofoam. In the ring, Bass could probably wallop McDevitt with a single blow powered by her 18-inch biceps. But when the gloves came off last fall in a federal courtroom in New York, McDevitt had scored a TKO of the 6-foot-2-inch Bass. The bodybuilder was seeking $120 million in damages for her claim under Title VII of the 1964 Civil Rights Act of a hostile work environment and sexual harassment as a World Wrestling Federation Entertainment employee. She left the courtroom with nothing, thanks to McDevitt’s deft defense of the federation, a long-time client. Though McDevitt, 53, had never before tried a hostile work environment claim, he had 22 years of litigation experience to draw on. His cases have included obtaining a new sentencing hearing for a four-time murderer facing the death penalty, a case he took pro bono. He has also represented Dick Morris, a former consultant to President Bill Clinton; and, for 15 years, World Wrestling Federation Entertainment. ‘The Anvil’ He landed his first pro wrestling gig in 1987, when he successfully defended Jim “The Anvil” Neidhart in a federal trial on charges he assaulted a flight attendant en route to Pittsburgh. Word of McDevitt’s prowess spread through the wrestling community. Wrestling-related litigation-ranging from contract disputes to federal conspiracy charges-occupies about 80% of his time. Most of those cases don’t garner much attention, but when the Bass case went to trial, the media had a ringside seat. Bass’ attorney claimed that the wrestler was subjected to so much harassment, including ogling by male staffers barging into the women’s locker room, that she was forced to quit after just five months with World Wrestling Federation Entertainment. Bass had been “abused and assaulted” and ultimately had to abandon her job because “her life was threatened,” the attorney told the jury. Those were fighting words, but McDevitt didn’t take the bait. “Try your own case,” he said. “Don’t litigate the case as defined by the other side. I listen to the other side’s opening statement, but I almost never change mine.” McDevitt counterpunched by showing that his client had created a warm and friendly workplace where harassment didn’t exist. “Rather than hostile, it’s a magic carpet ride” in show business, he said. But it takes work to succeed. Bass failed to learn any wrestling moves other than the “power slam” or to develop a persona that would build a loyal following. When she found she couldn’t make it in the entertainment industry, she sued to obtain publicity and big bucks, he said. He also used the plaintiff’s own words to discredit her. McDevitt’s best witness in the three-week trial turned out to be Bass herself. Minutes into his opening statement, McDevitt advised jurors to watch for discrepancies between Bass’ deposition and the testimony they’d hear from her. When he cross-examined her, a process that took nearly a full day, he delivered. He used Bass’ videotaped deposition to show contradictions in the courtroom. Before trial, he’d culled key admissions from the videotape and created numbered video snippets that his paralegal cued by number as he requested them. McDevitt repeatedly told the witness, he said, ” ‘This is what you’re saying now’ . . . and I’d put the clip up-’This is what you said then.’ She changed her story on virtually every major point.” McDevitt’s preparation allowed the plaintiff to impeach herself. This was especially effective when she discussed her supervisor, Jerry Briscoe. In deposition, she called him “a nice guy” and did not name him in any of the three versions of her complaint. In trial, she depicted Briscoe as a lecher who barged into the women’s locker room to leer at her sculpted body. McDevitt suggested to the jury that Bass had altered her testimony about her boss because, in the eyes of the law, an employer can be held liable for harassment if its supervisors are the perpetrators. In closing, he urged the jury to examine why Bass told what he called “necessary lies.” When a witness is caught in a contradiction, “that should be the singularly most uncomfortable experience they should endure,” said McDevitt, a former Marine Corps troop commander. He’s found that when a witness begins contradicting himself in cross-examination, it pays to ignore the initial tendency to pounce. He likes to allow witnesses to become ensnared and watch their credibility plummet. His attack on Bass’ credibility required him to walk a fine line. McDevitt had to discount a woman’s claims of sexual harassment and a hostile work environment without levying an attack or belittling workplace harassment. Unlike most people who allege sexual harassment, Bass had a very public forum for her complaint-radio shock jock Howard Stern’s show. She aired her allegations and laughed as she chatted about the suit. “No one who has a real grievance does that,” McDevitt said. The trial judge wouldn’t let the jurors hear or see the Stern footage. McDevitt read the transcript-and the notations of Bass’ laughter-so jurors would understand that the wrestler took a light-hearted approach to her litigation. That allowed him to position himself as a defender of sexual harassment laws. His hard work paid off when the jury returned a defense verdict. Several jurors told reporters they felt Bass’ suit was prompted by hopes of a big payday. McDevitt said he had a good feeling about the case from the start. He rejected a settlement offer of $800,000 before trial and said he was confident he could win. McDevitt’s successes have given him the financial security to take pro bono cases that move him. What he calls “the most fascinating case in my legal career” was one he took on behalf of the family of Judy Barrett, who allegedly committed suicide with the revolver of the Pittsburgh police officer who was her fiance. The officer, John Vojtas, was “a notorious bad egg in town” with a reputation for violence toward women. Shortly before Barrett was found dead at a bus stop, the couple had argued heatedly in a bar and Vojtas had yanked the engagement ring off her finger. McDevitt was hampered by the disappearance of official records relating to Barrett’s death. Forensic notes and pictures were missing from official files. He turned this absence to his advantage in a 1999 trial, arguing that their absence implicated Vojtas in her death. But the judge did not allow McDevitt to argue that the officer was responsible for Barrett’s death because the evidence was circumstantial. Instead, McDevitt argued that Vojtas was responsible for his fiancee’s suicide. The jury returned a verdict of $250,000 in compensatory damages plus punitives. It appears to be the only jury verdict in which a defendant has been found at fault for causing a suicide.

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