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Plaintiffs lawyer Robert Cunningham is a serious fisherman. Last summer, after three years of trying, he landed what he says was the first tarpon fly-caught in Louisiana. The 130-pounder was no bigger than tarpon he’d hooked in Florida’s clear waters. But Louisiana’s murky depths are a lot tougher. “If you have a tendency to give up,” he says of the effort, “you never get past the first year or so.” Cunningham and his partners at Mobile’s Cunningham, Bounds, Yance, Crowder & Brown landed the third-largest jury verdict in 2000: $3.5 billion. They represented the state of Alabama against Exxon Mobil Corporation over a gas and oil lease. But, unlike the tarpon, that one got away on appeal. The Alabama Supreme Court overturned the verdict in 2002, ruling that a key Exxon document was privileged and should not have been admitted. Cunningham and company didn’t give up. Last November he got it back � and netted the largest jury verdict of 2003. In a retrial, a jury awarded the state $11.9 billion. Cunningham says it’s the largest fraud verdict ever, and the largest punitive sum awarded to a single plaintiff. It also bucked last year’s trend. Awards were down in 2003, according to the list of 100 largest jury verdicts gathered by VerdictSearch, an affiliate of Corporate Counsel. In 2002 the top 100 awards totaled $38.7 billion. The total slipped to $19.6 billion last year. Awards in Alabama were down too. As recently as 2002, the state was on the American Tort Reform Association’s annual list of “judicial hellholes.” But it wasn’t on last year’s list. In 1999 the state capped punitive damages at three times compensatories, and that measure is beginning to be felt. Luckily for Alabama, however, its suit against Exxon was unaffected because it was in progress before 1999. The suit argued that the energy giant had intentionally underpaid royalties on a natural gas lease. The key to Alabama’s claim was its assertion that its lease was not the standard contract used by the industry. In last year’s Exxon retrial, Cunningham, partner Richard Dorman, and cocounsel Jere Beasley, of Montgomery’s Beasley, Allen, Crow, Methvin, Portis & Miles, established that a lawyer at the state’s Department of Conservation and Natural Resources spent a year writing a contract favorable to the state. Unlike the industry boilerplate contract used by Exxon, Alabama’s agreement did not permit oil companies to deduct expenses. But Exxon went ahead and did it anyway. Internal documents introduced in court showed Exxon knew the state might realize it was being underpaid, Cunningham says. But Exxon reasoned that Alabama’s auditors were inexperienced in this field and, even if they demanded additional payments, Exxon would only have to pay the balance plus 12 percent interest. But they forgot about punitive damages. Presenting a complicated case of financial fraud in terms the jury could understand was, however, a problem. Cunningham solved it with homespun analogies. In his closing argument, he compared Exxon’s industry-favorable contract to a horse and Alabama’s to a zebra. “What they’re doing,” he told jurors while showing a picture of a zebra, “is the equivalent of saying, ‘Well, yeah, you know that head may not look like a horse exactly, but it’s close. . . . Maybe it’s a birth defect. But this is really a horse. . . .’ And then when you look at them and say, ‘Well, what about those stripes?’ They say, ‘Oh, well, his mama was a black horse and his daddy was a white horse.’ “ Sam Franklin of Birmingham’s, Lightfoot, Franklin & White, who represented Exxon, acknowledged that the analogies connected with jurors. “One of them almost burst out laughing about the picture of the zebra,” Franklin says. Exxon wasn’t able to make its case as effectively, says Franklin. “I guess that’s just a harder story to tell,” he says. “It’s a lot easier to stand up and say that somebody’s cheating.” A version of this story originally appeared in The National Law Journal, a sibling publication of Corporate Counsel and part of American Lawyer Media. The table for The Biggest Verdicts In 2003 can be found at www.verdictsearch.com/news/top100.

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