Brilliant and costly experts are standard fare in big-money civil cases, but Ronald J. Schutz finds that nothing persuades a jury like the wisdom of his mom.
Schutz, chairman of the intellectual property litigation group at Robins, Kaplan, Miller & Ciresi in Minneapolis, capped his closing argument and cinched a $66 million verdict in a patent infringement trial by telling the jury of his mother’s advice to compare words with actions. Grantley Patent Holdings Ltd. v. Clear Channel Communications Inc., No. 06cv259 (E.D. Texas).
The jury entered its verdict on April 22. Judge Ron Clark upheld the verdict at a hearing on June 4 and awarded an additional $22 million in enhanced damages and interest.
The seven-day trial centered on allegations by Grantley Patent Holdings that Clear Channel, which operates 1,000 radio stations nationwide, willfully infringed four Grantley patents covering various aspects of its technology for billing radio advertising to process $15 billion worth of ad revenues. Clear Channel is appealing the verdict. Its attorney, Jerry L. Beane of Houston’s Andrews Kurth, declined to comment on the case, but praised Schutz.
“Ron does what good trial lawyers do, takes small amounts of evidence and builds a story,” Beane said.
Murder and millions
Schutz began his career as a litigator both defending and prosecuting felony cases with the U.S. Army Judge Advocate General’s Corps. “I am the only guy I know who has a murder acquittal and a $100 million verdict,” Schutz said.
The big-money verdict, which actually was $110 million — of which $103 million was affirmed on appeal — came in 1997 representing Fonar Corp., a medical technology company, against General Electric Co. for patent infringement. Fonar Corp. v. General Electric Co., 107 F.3d 1543 (Fed. Cir.), cert. denied, 118 S. Ct. 266 (1997).
Between then and the April verdict in the Clear Channel case Schutz won four other verdicts for amounts ranging from $2.2 million to $34.7 million.
Those verdicts are dwarfed by his success in a 2003 case defending against a $500 million claim against Robert Peterson, CEO of the meat packing company IBP Co., now known as Tyson Fresh Meats Inc., for alleged theft of trade secrets, breach of fiduciary duty and breach of contract. Schutz succeeded in getting the case dismissed on summary judgment. Luigino’s Inc. v. Peterson, 317 F.3d 909 (8th Cir. 2003).
Attorneys routinely come to trial loaded with dozens of depositions and years of discovery, making it all too easy to forget that jurors don’t have that information, and the context it provides, unless it is presented in court, Schutz said.
“I stress, especially to younger lawyers, that the only reality that exists for the jury is what happens inside the courtroom,” he said.
“Lawyers who have lived and breathed a case for two or three years too often forget the jury will only know what they have been told and what they see, and then only if you do that two or three times to drive it home,” he said. “If you don’t step back and put yourself in the jury’s position, you end up drinking your own bathwater.”
The deep knowledge lawyers bring to court about whatever is being litigated can sometimes backfire when cross-examining an opponent’s expert witnesses, Schutz said.
An aggressive cross-examination that fails to reveal any inconsistencies can make the attorney look like a bully, while bolstering the expert’s credibility.
“When you are dealing with experts, unless you have something that will absolutely box them in, you have to be careful taking them on with just your wit and good looks,” he said.
“Keep a very short, tight cross-examination in which you get them to concede or agree with some point that you are going to argue helps you, even though they are probably agreeing to things that are relatively noncontroversial,” he added. “The jury will see that you are getting the expert to agree with you on a few points. Sometimes you can carve up an expert but a lot of times you have to be very careful.”
Schutz recognizes a fine line between giving jurors the facts they need to agree with you and telling them the right answer.
In the Clear Channel case he filled in a copy of the verdict form the jury completes at the conclusion of deliberations, but he left blank the space for the dollar amount of the judgment.
“Juries are perceptive and don’t need to be told what to do,” he said. “You lead them to the edge but they come to the decision themselves.”