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Saying that defender Daniel J. Gerber had a jury trial with bad facts seems an understatement: allegations of racketeering, a parade of former employees testifying about widespread document fraud, mysterious disappearance of documents and, to top it off, a possible $100 million punitive damages award following millions in compensatory damages. Gerber’s case involved the owner of Lighthouse Bay apartment complex in Tampa, Fla., suing Orkin Inc. over a termite-treatment contract. Looming over the outcome was a 2000 Alabama fraud case against Orkin that resulted in an $80.8 million verdict, most of which consisted of punitive damages, which were reduced on appeal to $2.3 million. The Florida case contained some of the same documents presented in Alabama. But the Florida circuit court jury in Tampa had a different take: The case ended in a defense verdict. After three weeks of testimony about termite behavior, contract language and alleged forgery of customer signatures, the jury issued its September 2006 verdict in about an hour. Lighthouse Bay Holdings Ltd. v. Orkin Exterminating Co. Inc., No. 02-1963. Bad facts early Gerber, partner in the Orlando, Fla., office of Rumberger, Kirk & Caldwell, said he wouldn’t have won if he hadn’t started talking to the jury about the bad facts as early as jury selection. “From the defense side, one of the disadvantages is that the plaintiff goes first and they get to spin the case aggressively,” Gerber said. Opening statements were three hours. “We used jury selection as a way to prepare the jury for the bad facts before the plaintiff got to expose them.” Acknowledging the bad facts right off the bat, the defense can get a commitment from jurors to remain neutral “in light of what otherwise would be devastating facts,” Gerber said. “I think too often attorneys try to emphasize the good parts of the case during jury selection in order to find favorable jurors.” Another reason to be forthcoming? Juries like it. “If they get to know you as a trustworthy person early on, so much the better,” he said. Gerber said the turning point in the case was his cross-examination of the plaintiff’s star witness, former employee Jack Cox, who testified that Orkin instructed him to forge customer signatures on hundreds of reinspection documents, including 17 for Lighthouse Bay. The 17 documents were never found, and the plaintiff alleged that Orkin had “lost” the file, Gerber said. Cox had testified in a dozen depositions in cases against Orkin � during and after his employment, Gerber said. Gerber examined transcripts and challenged Cox over how his testimony about the alleged forgery became “more emboldened over time as he got more involved in litigation.” Under cross-examination at trial, Cox conceded the differences: “That was when I was on your side. Now I’m on their side,” Gerber said recalling Cox’s reply. As for the missing 17 reinspection documents Cox insisted that he forged, Gerber said he planted a “land mine” in Cox’s cross that caused the witness to become “unraveled.” Because of the way it was structured, the Lighthouse Bay contract would have required only one reinspection document for the entire property, not separate tickets for each building, Gerber said.
TRIAL TIPS • Expose jurors to your bas facts as early as jury selection. • Meet with the entire trial team to evaluate each trial day. • For visuals, use low-tech tools.

When challenged, Cox bristled, he said. “What does it matter?” Gerber said the witness’s final words were. Though the Cox cross-examination may have provided courtroom drama benefiting the defense, the jury believed that Orkin cheated Lighthouse Bay, according to plaintiff’s attorney Peter M. Cardillo of the Cardillo Law Firm in Tampa. Cardillo said a juror who contacted him said the jury would have awarded damages to Lighthouse Bay if its Orkin contract had not contained disclaimer language precluding the plaintiff from recovering damages. If not for that contract provision, the jury would have awarded the plaintiff $10 million in compensatory damages and $30 million to $50 million in punitive damages, Cardillo said. The verdict is on appeal. The defense effectively neutralized the bad-fact evidence, Cardillo said, but that wasn’t the reason for the verdict. Gerber did a good job “confusing the jury” over the contract, Cardillo said. “He should take credit for that.” The plaintiff sought a new trial based on comments from the juror, who refused to sign an affidavit, countered Gerber. “This is part of an overall effort to discredit the verdict, which failed,” he said. “The fact is, if I was a ‘master of deception’ as Cardillo said in rebuttal in closings, the jury could have penalized Orkin,” Gerber said. Lead defender on Lighthouse Bay, Gerber has obtained other big defense wins against the odds. In April 1997, a Florida state court jury in Manatee County rendered a defense verdict in a case against Sears Roebuck and Co. alleging that a pesticide caused Susan and Don Maxwell’s neurological damage. Maxwell v. Sears Roebuck and Co., No. CA 94-0156 (Manatee Co. Cir. Ct.).

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