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Kirkland & Ellis attorney Eugene F. Assaf isn’t one of those hard-edged litigators who cuts off witnesses in mid-sentence to end rambling explanations. When a witness says, “Let me explain,” Assaf says, “Please do.” “The jury wants to trust you as the lawyer and see that you’re giving people a fair shake on the stand,” Assaf said. “My experience is that the person often will say something in their explanation that is demonstratively false or ridiculous.” Assaf’s gentler approach is about psychologically winning over the jury by being fair and polite throughout a trial’s proceedings, but it’s also about taking a “calculated risk” that additional information will play to his advantage, he said. He thanks all juries for respecting their oaths and tells them that the U.S. justice system depends on them expecting the same of witnesses. “The oath matters and credibility counts,” Assaf said he tells jurors at the start, middle and end of the trial. Assaf, 46, led a team of lawyers from Chicago-based Kirkland to two seven-week trial victories in as many years, winning one in New Jersey state court last year and another in Florida state court the previous year. In the New Jersey case, his client, BASF Corp., won $170 million in compensatory damages, which was the eighth-largest jury verdict last year, according to VerdictSearch, an affiliate of The National Law Journal. BASF v. Lyondell, No. MRS-L-001069-05 (Morris Co., N.J., Super. Ct.). Contractual dispute Assaf’s team represented BASF, the U.S. arm of a German chemical producer, in a lawsuit it brought against Lyondell Chemical Co. over a 1998 sales contract for propylene oxide, a chemical that BASF bought from Lyondell and uses in many of its products. BASF argued that Lyondell had overcharged for the chemical by as much as $287 million and later tried to cover up contract violations. During the trial in Morristown, N.J., Assaf showed that every single Lyondell witness, except one, in courtroom testimony contradicted earlier statements made during depositions, chalking up 34 instances of impeachment from the stand, Assaf said. During his cross-examination, he flashed video clips of witnesses’ earlier statements from depositions up on a large screen in the courtroom every time a witness on the stand contradicted a previous statement. “That becomes a very dramatic moment in the trial,” Assaf said. In one instance, a Lyondell witness answered “yes” when he was asked whether he understood the phrase, “the duty of fair-dealing,” although he had answered “no” in his deposition. When Assaf asked if he could explain the discrepancy, the witness said it was because of certain preceding questions during the deposition about how to treat customers. But then Assaf showed that there had been no such prior questions. H. Lee Godfrey, name partner at Houston’s Susman Godfrey and leader of the defense team for Lyondell, did not return calls seeking comment. In addition to the jury finding that BASF was owed the $170 million in compensatory damages, the court added $36.5 million for prejudgment interest. A juror’s letter Assaf learned the power of treating witnesses well when he co-led a Kirkland team in defending client Honeywell International Inc. against a civil fraud complaint brought by Breed Technologies Inc. The lawsuit alleged that Breed’s purchase of an airbag and seat belt business from a Honeywell predecessor, AlliedSignal Inc., had caused it financial troubles that eventually led to bankruptcy. Breed Technologies Inc. v. AlliedSignal, Inc., No. 99-2478. After Breed lost the 2006 trial in Polk County, Fla., the jury foreperson sent an e-mail to the company’s attorneys at Jones Day saying that they didn’t like how that legal team had cut off witnesses’ testimony, Assaf said. The e-mail became public later when it was attached to a request for a new trial. Jones Day attorney Gregory Shumaker declined to comment. “It was really a life lesson in seeing how jurors think and the importance, in front of a juror, of being fair to the witness,” Assaf said. A ‘calculated risk’ Assaf’s principle of giving witnesses greater rein to speak even extends to the unorthodox practice of occasionally lobbing an open-ended question at a witness. “If you’re asking the jurors to figure out a person and whether they are truth-tellers, then every once in a while you have to ask an open-ended question and let them show themselves to the jury,” Assaf said. “It’s a sort of calculated risk.” Assaf said he tells his own witnesses to be themselves on the stand and provide additional information that the jury may need. When he called an economic damages expert in the BASF case, the expert was pleased to take time during breaks and overnight to come up with additional information requested by opposing counsel. “Your expert has to be well-prepared and seem to have done everything they can do to help the jury,” Assaf said.

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