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How do the best trial lawyers win big? Recently The National Law Journal , a sister publication, presented its annual top 10 litigators. Each winner had at least one significant trial victory within the last 18 months as well as a track record of major wins over the last several years. The following excerpts look at the attorneys whose victories came in the intellectual property realm.
LEORA BEN-AMI Keep it simple. That is Leora Ben-Ami’s most useful legal strategy, and it won her one of the largest intellectual property verdicts of last year. “You take depositions and do analyses from people at a high scientific level, but then you have to remember you will be explaining it to people without Ph.D.s,” says Ben-Ami, a partner in the New York office of Kaye Scholer. Understanding scientific and legal jargon is not the easiest of tasks for a jury. But Ben-Ami convinced a Massachusetts federal jury to reach a $65.2 million verdict (plus future ongoing damages) for patent infringement. The case, Ariad Pharmaceuticals Inc. v. Eli Lilly and Co., addressed whether Evista and Xigris, two of Eli Lilly’s drugs, infringed upon Ariad’s methods of treating human diseases by regulating NF-kB, a protein in the body that influences cell-signaling activity. After a three-week trial, the jury found for Ariad and its co-plaintiffs. To prove her case, Ben-Ami broke down scientific terms into shorthand. The long names of certain carbohydrates became simply “good sugars” and “bad sugars.” She also brought in parts of a gel electropheresis apparatus to show the jurors what it means when molecules bind. “Basically, if there is no binding, the blob would be in one place,” she told them. “If there is binding, the blob would move to a different place.” And if they do bind, she explained, it means the defendants had infringed on her client’s patent. The science can be as simple as that, Ben-Ami says, and juries will learn if you teach it right. — Sandhya Bathija
JOHN DESMARAIS Throwing hand signals as he spoke, John Desmarais looked more like a referee than a litigator this spring in a San Diego federal courtroom. Desmarais, a partner in the New York office of Kirkland & Ellis, wanted to persuade the jury that Microsoft Corp. had infringed on two valuable patents for music file compression held by his client, Alcatel-Lucent. Jurors needed to understand such complex matters as the thresholds of human hearing and how frequencies are coded as music. So Desmarais devised simple hand signals to help make his case. He raised his left hand when referring to one type of sound threshold and his right hand when discussing another. He interlaced his fingers when explaining how his client’s patent combined them in the process of converting audio into digital music. “The jurors got so used to seeing it in the courtroom that they started to do it themselves and laughed when I did it,” Desmarais recalls. After they awarded Alcatel-Lucent $1.53 billion — the largest patent infringement verdict ever — jurors told him that his signals helped them comprehend the technology during the 12-day trial of Lucent Technologies Inc. v. Gateway Inc. The hand gestures were just one part of a carefully executed strategy. Desmarais says he always simultaneously tries three cases: one for the jury, one for the judge, and one for the appellate court. His primary audience is the jury “because you have to win in the first step,” he says. Jurors demand credible witnesses paired with positions that are easily conveyed and repeated. At the same time, Desmarais is tailoring his evidence and legal arguments to the bench to preserve the verdict: “You have to make sure to get a little more granular for the district judge.” His last audience, the U.S. Court of Appeals for the Federal Circuit, requires an analysis of the technology and a detailed linking analysis of claims. That material could bore jurors, yet a victory won’t hold up without it. “That’s one of my struggles,” Desmarais says. “We’re often making calls about cutting detail to please the jury, but you don’t want to cut out so much that you’re impaired at the court of appeals.” — June D. Bell
KENNETH GALLO One lawyer succeeded in his defense of a proverbial Goliath client against a David-like opponent by bringing the defendant down to the plaintiff’s size. Kourosh Dastgheib, an ophthalmologist, had accused Genentech Inc., the world’s second biggest biotechnology company, of unjust enrichment and fraud claims relating to the development of Lucentis, a breakthrough medication for age-related blindness. In Dastgheib v. Genentech Inc., Dastgheib alleged that the company relied on his research to develop Lucentis and promised him a cut of the profits and scientific recognition for his work. He claimed that Genentech owed him more than $1 billion in damages — one-third of the net present value of the drug’s expected future income stream. Rather than attempt to stare down David from Goliath’s imposing stature, Kenneth Gallo, managing partner of the D.C. office of Paul, Weiss, Rifkind, Wharton & Garrison, brought in Napoleone Ferrara, the Genetech researcher who, the company said, was the true developer of the drug. “We successfully humanized and personalized Genentech. We identified the scientist who did the research [and] introduced him to the jury when we did our opening statement,” Gallo says. He crafted Genentech’s defense to make it hinge on which researcher was telling the truth. Rather than the case being about Dastgheib versus Genentech, it was Dastgheib’s word against Ferrara’s. “What we were doing was standing and fighting for our scientists,” Gallo says. Dastgheib’s case was riding on an unjust-enrichment claim. This made it tricky to defend, says Gallo, because there is no precise legal standard to define unjust enrichment, which results in vague jury instructions. Genentech’s conundrum was this: Although Ferrara and his team were the ones who actually developed Lucentis and properly earned the scientific credit for its invention, Gallo says, Dastgheib had done some research and the company had paid to see his research. Even if Genentech convinced the jury that it had done most of the heavy lifting, the jury might still think that the biotech giant could easily afford to pay Dastgheib something. “A compromise verdict would have been very bad for Genentech because you could get to hundreds of millions of dollars in a blink of the eye,” Gallo says. He also simplified the intricate story of Lucentis’ 20-year development into a clear and brief narrative, and he kept returning to four or five basic themes throughout the trial. At the end of the 2 1/2-week trial last November in Pennsylvania federal court, the jury found for Genentech. — Peter Geier
STEVEN ZAGER Giving a jury the factual basis for deciding a case your way is not the first step, says Steven Zager, a partner in the Houston office of Akin Gump Strauss Hauer & Feld. First, “make the jury want to decide the case for you,” he says. “Engage the jurors emotionally before you engage them cognitively.” Zager learned that principle tending bar for 10 years in college and law school. “You learn people make decisions with their heart, and then seek ways to reinforce it with their head,” he says. For a business litigator, that’s an especially important insight because the issues are often complex and the facts convoluted. “I think where a lot of fine lawyers go wrong,” says Zager, “is they forget all about step one. They are so anxious to talk to [the jurors] about the reasons and the evidence that they never enable the jurors to want to find for them.” In June 2006, Zager enabled a Texas state jury to award his client $152.7 million in damages for trade secrets misappropriation. Hexion Specialty Chemicals Inc. v. Formosa Plastics Corp. was then settled for a confidential amount. Zager’s client, Hexion, and its Taiwan-based competitor, Formosa Plastics, manufacture chemicals used in making epoxy resins. At issue was a formula developed by Hexion for optimizing the manufacturing process. Hexion accused Formosa of paying a Hexion employee $40,000 for that formula. Of course, Zager wouldn’t have won by skipping all discussion of the scientific processes, but he made those complexities secondary. He turned the case into a morality play with a simple message: “It’s wrong to take something that belongs to someone else.” He introduced the theme in jury selection. “You’ve got to be willing to toss out concepts and then stand back and hear what members of the jury pool have to say about those concepts without trying to dominate the conversation,” he says. Voir dire is “the only time in a trial where jurors get to talk to me — except for the verdict. And you don’t want to wait for the verdict to have that conversation.” The trial had several golden moments. Some defense witnesses from Taiwan testified in Chinese though they spoke English, Zager says. Indeed, all had said in depositions that they spoke, read, and wrote in English, and Zager introduced their English-speaking abilities as part of his case in chief. When the defense called them, defense counsel Rusty Hardin used an interpreter first to translate his questions into Chinese and then to translate the witnesses’ answers into English. When one witness mistakenly answered a question in English, the defense lawyer admonished him to wait for the translation and to give his answer in Chinese, Zager remembers. “It would be absolutely impossible for you to testify at a trial like this in English, wouldn’t it?” Hardin asked the witness, Zager recalls. “In perfect English, the witness goes, �Yes, that would be impossible.’ That was one of those moments you can’t purchase.” Zager said he took some gambles in litigating the case that he had never taken before and probably wouldn’t take again, though they paid off. He called all his experts first when he ordinarily would have called “the face” of a company first to personalize the client. But he decided that the defense’s biggest asset was Hardin, a high-profile Houston trial lawyer. In battle, you try to neutralize the opponent’s strength, says Zager. He correctly predicted that Hardin would not be cross-examining the plaintiff’s expert witnesses. “That would keep Rusty in his chair for the entire first week of the trial and not give him a chance to make a connection with the jury,” Zager says. “It’s like pitching around somebody in baseball. We pitched around Rusty. That, I think, was the key to the case.” By the time Hardin was participating, “most jurors had already made up their minds about who was good and who was not,” says Zager, who spoke to members of the jury after the trial. Hardin laughs when told of Zager’s strategy. “I think he’s being too kind.” What made the difference was the credibility of defense witnesses, he says. Several Chinese witnesses didn’t understand the role of depositions and had conflicts between their depositions and trial testimony. To the jury, it looked like they were lying, Hardin says. “It was a good reminder to me of the difficulties of cross-cultural witnesses.” — Emily Heller
Sandhya Bathija and Peter Geier are reporters for The National Law Journal , an ALM publication based in New York City. June D. Bell and Emily Heller are freelance writers and regular contributors to the NLJ.

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