After I posted last week’s blog a large number of people wrote in to ask how the private antitrust case turned out: Did I actually get eaten by rats? Did the case go to trial or settle? Did we win or lose?
Your Humble Blogger believes in giving his readers what they want, so here is how the antitrust case went.
Late one morning I was summoned to the office of the head of the litigation group, Mr. M. When I entered his office he was there all right, sitting behind his big desk. But with him was a tall, handsome fellow with prematurely white hair. I’d seen the guy walking around the halls, but had no idea who he was.
He turned out to be Mr. W, a senior attorney who had spent most of his career elsewhere but had recently joined Reed Smith – one day after I’d joined the firm. (Thereafter, I never stopped reminding Mr. W that I was senior to him in tenure and therefore he should stop yelling at me.)
Mr. M told me that a big New York steel company had sued a bigger Pennsylvania steel company and that the latter was a Reed Smith client. The plaintiff wanted $100 million in damages and he wanted those damages trebled, as permitted under US antitrust law.
Mr. M also told me that if the case went to trial, which was highly unlikely, Mr. W would be sitting in the first seat at the defense table. What was needed, he said, was a young fellow who badly needed trial experience and who could sit in the second seat.
“What would you think of taking on that job?” Mr. M asked.
There was only one non-career-ending answer to that question and I gave it: “I’d love to try this case with Mr. W!” I exclaimed, which was the opposite of what I was actually thinking.
We both looked over at Mr. W, who was giving me a dismal and skeptical eye. Apparently, he was a lot less enthusiastic about trying the case with me than I was about trying the case with him.
“Well, that’s great!” said Mr. M. “Why don’t the two of you go to lunch and get acquainted?”
When I was in law school I imagined that, once I joined a big, white-shoe law firm, I would be lunching every day at places like Le Bernardin. But Mr. W took me across the street to an underground cafeteria that looked less like a restaurant and more like a bomb shelter.
While we dined on macaroni and Wonder Bread, Mr. W explained to me that he knew I’d gone to Harvard Law School and that, therefore, I was probably useless as a lawyer and especially useless as a trial lawyer. I agreed that was probably true of most Harvard lawyers but that I was a working class boy – probably the only one at Harvard Law – so I actually knew how to work hard.
Mr. W wasn’t mollified and the next thing I knew I was sent off to review documents that had been produced in the litigation discovery process. As I noted earlier, those reviews took place in chilly steel warehouses situated on smelly, polluted rivers in Detroit, Newark, and St. Louis.
Meanwhile, most of the action in the case (I’ll call it Big Steel vs. Bigger Steel), was taking place in a courtroom in the US District Court for the Southern District of New York, i.e., Manhattan. Reed Smith was furiously demanding that the case be transferred to the Western District of Pennsylvania, i.e., Pittsburgh, and the plaintiff was furiously demanding that it stay right where it was. I only read about this stuff in the newspaper.
After almost a year of fury, the Court of Appeals for the Second Circuit, overruling the District Court, ordered the case to be transferred to Pittsburgh. I was thereupon recalled from a rat-infested steel warehouse along the Detroit River and placed in the second seat at the defense table – the case was going to trial.
* * *
Up to that point in my career I’d only tried one case. It involved a guy who’d been selling copies of the Communist Daily Worker on the streets of McKeesport without a permit. You might wonder whether the good people of McKeesport had ever read the First Amendment to the US Constitution, but it turned out the judge in the case hadn’t read it, either – I represented the Commie and lost.
But now I’d moved on to the Big Time. Mr. M had told me Big Steel vs. Bigger Steel (hereinafter BS v. BS) was the single biggest trial in the office. But despite my lack of litigation experience and my 0 and 1 trial record, I’d studied trial tactics in law school and considered that I was ready to become the next Perry Mason.
Mr. W found this hilarious in the extreme. He assured me that everything I’d learned in law school was worthless – all that mattered was what was going on in the minds of the jury. And now that we would have a good Pittsburgh jury, not a sleazy Manhattan jury, Mr. W was confident the case was “in the bag.”
Thus far in my dealings with Mr. W I’d concluded he wasn’t the ripest apple on the tree. He certainly looked good – like he’d been sent over by central casting to play the role of a top-flight trial lawyer – but if the conversation turned to any sort of complicated legal issue, his eyes glazed over. He seemed to have little curiosity about the complex antitrust matters I’d briefed over the months.
And yet, Reed Smith had put the guy in the first seat at the biggest trial going on at the firm. It seemed to defy common sense.
Next week I’ll outline a few brief vignettes that will give you an idea of what it was like to try an antitrust case with Mr. W.
Next up: Antitrust Is More Interesting Than You Think, Part 3
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