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The case against American Tobacco Co. Inc., was built on hard work and clever legal argument. But, as is so often true, it also was held together with technology that helped the lawyers both with preparation and presentation. Herman, Herman, Katz & Cotlar created two databases prior to trial to house discovery, relied on both PowerPoint and Sanction software to present exhibits in court, and maintained a team of paralegals to edit video depositions and index transcripts. Russ Herman even hired a consultant to tailor all the technology to the New Orleans courtroom, where a jury returned a $591 million verdict in 2004. In Tuskegee, Ala., the scene was decidedly low-tech in Whittaker v. Southwestern Life Insurance Co., a fraud case that produced a $1.6 billion verdict. The lawyers probably spent more on lunch than on courtroom presentations. “In terms of technology, it was a handful of exhibits and a bunch of yellow legal pads, and that was it,” says Brian Strength, plaintiffs counsel with Cochran, Cherry, Givens & Smith in Tuskegee. When it comes to trial technology, there is no one-size-fits-all approach. The New Orleans and Tuskegee trials produced two of the top-five jury verdicts nationwide in 2004, but the technology could not have been more different. Below, we look at the technology deployed in six of the cases that produced the top-ten verdicts of 2004, as measured by The National Law Journal, a sibling publication. (They are listed by the size of the verdict.)
Whittaker v. Southwestern Life Insurance Co. Macon County, Ala., Circuit Court Verdict: $1.62 billion Update: Confidential settlement. How high-tech was the trial that led to the biggest verdict of 2004? “It could have been tried 20 years ago the same way,” says Strength. Calling it “an old-fashioned fraud case” involving the theft of insurance premiums, Strength estimates that there were no more than 20 exhibits during the three-day trial, mostly insurance policies, which were passed by hand to the jury. This simple presentation was dictated by strategy, the straightforward nature of the case, and the venue — in this case an old state courthouse in Tuskegee that lacked newer technological capabilities. Pickett et al. v. Tyson Fresh Meats, Inc. U.S. Middle District of Alabama Verdict: $1.28 billion Update: Verdict overturned by judge. Appeal pending at press time. Although the legal issues in this antitrust case stemmed from the Packers and Stockyards Act of 1921, the technology that helped these cattle producers pursue their claim was decidedly 21st century. Plaintiffs attorney Joe Whatley, Jr., of Birmingham’s Whatley Drake says that his firm recorded and digitized depositions and scanned and stored exhibits as PDF files. The lawyers used the TrialDirector software suite by inData Corporation to pull the electronic evidence together for trial. For visual evidence, the firm relied on Imaging & Video Resources LLC, a Birmingham trial consulting company that produced courtroom charts and ran the video presentations, which could be annotated on the fly during the trial. Scott v. The American Tobacco Company Inc. Orleans Parish, La., District Court Verdict: $591 million Update: Appeal pending. Herman, Herman, Katz & Cotlar relied on a combination of high-tech software programs and cost-conscious managerial savvy to handle discovery in this case. In addition to the two databases the firm created with Sanction, it assigned paralegals to prepare trial graphics in-house. At trial, the firm called on Evidence Management of New Orleans to help with courtroom technology. Exhibits and video were projected on a large screen opposite the jury box. Medtronic Sofamor Danek, Inc. v. Michelson U.S. Western District of Tennessee Verdict: $559 million (award is on Michelson’s counterclaim). Update: The parties entered into a $1.35 billion settlement. Medtronic will pay Michelson and his licensing company $550 million to settle all legal claims and $800 million to acquire Michelson’s spine-related intellectual property, including future spinal inventions for the next 15 years. Fittingly for a complex patent lawsuit, this case may have been the standard-bearer for technology use among this year’s top verdicts. When Medtronic Sofamor Danek Inc., sued inventor Dr. Gary Michelson for breaking a contract involving a spinal surgical invention, Michelson countersued, claiming that the company had infringed on his patents, and won. Technology played a big part in the win, according to his lawyers at Kirkland & Ellis and Jeffer, Mangels, Butler & Marmaro. The firms chose Summation software to help organize millions of pages during discovery, while turning to Attenex’s Patterns search software to navigate hundreds of gigabytes of data during electronic discovery. The team’s army of outside vendors also included MIM Legal Video and Graphics’ Patents Plus for document management; FTI Consulting, Inc., and its TrialMax software for trial presentation; Forensics Consulting Solutions for electronic evidence; and INSYNC Consulting Group, Inc., for computer forensics. By the end, Michelson’s lawyers estimated they spent $6 million on technology — a staggering sum, but barely 1 percent of the $582 million jury award. Kansas City Power & Light Co. v. Allen-Bradley Corp. Jackson County, Mo., Circuit Court Verdict: $452 million Update: Verdict size reduced by judge. Appeal pending. In this product liability trial stemming from a gas explosion, plaintiffs counsel relied on the TrialDirector suite. The DocumentDirector component allowed attorney Kirk May and his firm, Rouse Hendricks German May of Kansas City, to organize thousands of documents that were scanned in-house and to assemble them in a large internal database. After videotaping all depositions, the firm used DepositionDirector to sync spoken testimony to a scrolling transcript text. A team of paralegals did the editing, allowing the firm to save time and money that would otherwise have gone toward outside editing services. The firm also used a spreadsheet program, Promod, to analyze case-related data. “Each piece of technology is a tool,” May says. “The mark of a good trial lawyer is having all the tools and knowing when to use each for impact and effect.” Poliner v. Texas Health Systems U.S. Northern District of Texas Verdict: $366 million Update: Court-ordered mediation pending; hearing scheduled for June 1. When cardiologist Lawrence Poliner sued a Texas hospital for malicious suspension of privileges, the resulting trial produced little in the way of heart-stopping technology. Other than using Summation to track depositions and documents, his lawyers were familiar enough with the evidence that they worked with hard copies, according to Karin Zaner of Kane, Russell, Coleman & Logan in Dallas. At trial, the technological centerpiece was an Elmo, flanked by a VCR and connected to a screen projector used mostly to display angiograms and documents. Otherwise, the doctor’s lawyers — which also included Dallas’ Aldous & McDougal — relied on a flip chart, blown-up posters, and a life-size model of the human heart. Zaner says the low-tech approach worked to the plaintiff’s advantage — and her own. “The stress of the trial is enough,” she says. “If I were doing something high-tech, I would be very nervous about malfunctions, and I would have to make sure I knew exactly what I was doing.” A version of this article first appeared in The American Lawyer, a sibling publication of Corporate Counsel.

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