X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Case: Trovan Ltd. v. Pfizer Inc., No. CV-98-0094 (C.D. Calif.) Outcome: The reversal of a $143 million jury verdict, the largest trademark verdict ever. Judge Lourdes B. Baird granted a mistrial based on attorney misconduct and a finding that the plaintiff, Trovan, had manufactured evidence, introduced perjured testimony and defied the court’s rulings, infecting the jury so as to be prejudicial. What was the key factor for getting the verdict overturned? I always like to work from the other end of the telescope when I argue. I like to say, “Here’s what I would like the outcome to be. How could someone argue to reach this?” There was no way I could reconcile an infringement with the damages. For a jury to award $143 million on this record, I said, “How did this happen?” The only thing I could figure out is the plaintiff’s attorneys knowingly had a weak case; they didn’t put their thumbs, but their feet, squarely on the scale of justice. Two lawyers, four feet. The only way you can explain this verdict was that the jury was totally biased because of the conduct of the plaintiffs. I worked backwards from that. I found 778 objections which were sustained and 67 objections raised by the court…. When I fashioned my argument, I said there’s only one conclusion. My analysis of the case was my misconduct motion. [It] was very strong. But I also wanted to point out that there were other issues that compounded it. There’s an easy temptation in motions for name-calling. I felt the best thing to do with these other attorneys is to quote them. We put together an appendix of the conduct. I tried to let the record speak for itself. I tried to show [the judge that] they had a lot of problems, so my motion was thematic. The evidence was very thin. They had to get the jury angry with us to get damages. I tied the misconduct to areas of proof in their case. You can have all the misconduct in the world, but you have to tie it in a concrete way to areas of proof. What was the most difficult aspect of proving your case? The strong presumption in favor of a jury verdict. It is enshrined in the Seventh Amendment of the Constitution. Every litigant is entitled to his or her day in court. Trial by jury. I knew I’d be facing that argument. There’s nothing talismanic about the fact that this is a jury verdict. If in fact there were irregularities in the trial, you’re denied a fair trial. You can have a new trial. I had to deal with these strong emotional feelings. I felt if I patiently showed the court these lawyers weren’t incompetent, they knew where their case was weak, so they had to plunk their feet on the scale for it to come out, [I would prevail]. What would you have done differently with a jury, and what tips do you have generally for dealing with a jury? I think it was a preordained result that Pfizer would lose. Mr. Lippert [the trial lawyer] faced a classic Hobson’s choice. If he sat silent, he might not have protected his post-trial [privilege]. If he objected, he could be viewed by the jury as obstructionist. My tendency is to be easygoing. I like to project the image of fearlessness facing any evidence or argument they want to make; I can meet it so a lot of objecting is a problem…. I know how I’ll retry this case — I’ll be in their face. Generally, for dealing with a jury you have to be above reproach. Juries can smell a phony. You have to be yourself. My style is easygoing, if not self-deprecating. I believe less is better. I respect the intelligence of the jury. This experience is an exception. Most of the time, I think, a jury gets it right. In the final analysis, understand what the key facts are and have a compelling story. The best story wins.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.