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Soon after jurors heard a man testify about his reconciled relationship with his newly rich brother, the other brother’s lawyer, Mark S. Werbner, responded by asking his client’s son to stand up in the courtroom. “What’s your birthday?” he asked the son, now a teenager. By calling on the teen, Werbner introduced evidence in a $200 million contractual fraud case that Franco Boulle had no brotherly love for Werbner’s client, Jean-Raymond Boulle, at the time they signed an agreement splitting up their assets in a failed business venture. He said Franco never visited his own infant nephew, who happened to be born about a month before the two brothers signed the 1992 dissolution agreement. That, Werbner said, disproved Franco’s claims that he was defrauded. “You mean, you want us to believe you and your brother had reconciled, and you were as close as you’ve ever been in your life when this boy was born, but you didn’t go visit him or see him in the hospital?” he said he asked Franco in the courtroom. That was “a dramatic revelation to the jury that maybe Franco was somewhat putting on an act for the jury about these things in an effort to try to win the lawsuit,” he said. Two brothers, big money The point proved critical in a trial that ended with a defense verdict in May 2006. Werbner, a partner at Dallas-based Sayles Werbner, said the case hinged on proving to the jury that his client wasn’t the bad guy. The case pitted two brothers against one another. Franco, who had been living in France, and Jean-Raymond, who was working for diamond supplier De Beers S.A. in England, moved to Dallas in the 1980s to start their own diamond exploration partnership. The business failed. In the 1992 agreement, Jean-Raymond took over the partnership’s projects and agreed to pay Franco $45,000, plus 5% of the net revenue he received from any of those projects. Later, Jean-Raymond started another company that, in 1994, discovered the largest nickel deposit in the world. Jean-Raymond sold his business for about $4 billion. His unlucky brother, Franco, filed a lawsuit in 1998 for $200 million of the pot. Marie Joseph Franco Boulle and Lesa Schmidt v. Jean-Raymond Boulle, No. DV-98-01435 (Tex. Dist. Ct., Dallas County, 2006). Franco claimed his brother had breached their agreement because the profitable nickel discovery relied on their prior projects. He also charged his brother with fraud, alleging Jean-Raymond had never intended to obey the agreement. Werbner said the most important aspect of the case was the relationship between the two brothers. He had to discredit Franco’s claims and present Jean-Raymond, the wealthier brother, in a favorable light. “That was the part . . . the trial dealt with the most: The life stories of these two brothers and what was right and not right in this extraordinary success of the one brother,” he said. As to his client, he wanted jurors to avoid being “resentful that he had sort of ‘won the lottery,’” he said.
TRIAL TIPS • Present the trial like a good story. • Develop the human side of the case. • Illustrate the case with graphics.

A critical voir dire Larry Veselka, a partner at Houston-based Smyser Kaplan & Veselka, who represented Franco, has appealed the verdict. He attributed the verdict to unspecified issues pending on appeal but admitted that Werbner spent a good portion of the trial portraying Franco’s claims as “sour grapes.” The case was “really affected much more by the tenor set earlier in the case that made some of the jurors look jaundiced toward Franco’s claims,” he said. He said Werbner’s portrayal of his client trumped his own efforts in convincing jurors that Jean-Raymond was a cold-hearted businessman with “dead eyes.” Werbner added that voir dire played a critical role in the case. He said he wanted jurors who would look at the case like sophisticated business executives. He told prospective jurors: “This isn’t an Oprah Winfreyshow where two brothers who haven’t spoken in years reunite. That isn’t going to happen. This is a lawsuit.” He said he shied away from prospective jurors who had family businesses because their personal experiences could have outweighed the story he wanted to tell in the courtroom. That story, which proved critical to the case, focused less on the language of the disputed contract and more on the human side of the conflict. Presenting a good story, complete with villains and heroes, is important in persuading jurors, he said. In a more recent case, Werbner represented a group of insurance firms that sued Sears, Roebuck and Co., for breach of contract after the retailer redeemed corporate bonds before they matured. AIG Annuity Insurance Co. v. Sears, Roebuck and Co., No. 0410471 (Tex. Dist. Ct., Dallas County, 2007). He said the case was complicated and riddled with new vocabulary words for the jurors. But he used analogies, mock trials and graphics to get his message through to the jury, he said. In February 2007, the jury awarded his clients $73.5 million. “This was a challenge in a pretty arcane subject of bonds and prospectus and redemption and declining receivables,” he said. “But the jury found it interesting, and that’s why we were successful. They followed the story.”

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