More vignettes to show you what it was like to try a case – a big case – with Mr. W, the senior Reed Smith partner who looked terrific but whose elevator didn’t seem to go all the way to the top floor. After that I’ll return to my original topic: “Antitrust Is More Interesting than You Think.”

Trial Tactics

Over lunch one day in the bomb shelter, about a week before the trial started, Mr. W said to me, “Let’s talk trial strategy.”

I smiled to myself. I’d aced the course on Trial Tactics in law school and could hardly wait to dazzle Mr. W with my brilliance. I was to be sadly disappointed.

“Let’s start with the facts,” he said, tucking into his meatloaf. “And the simple fact is that our client ripped the plaintiff’s face off.”

“What??”

“Oh, yeah, ripped his face off, slammed it on the ground, stomped on it, and set it on fire.”

“But…”

“But that’s irrelevant. What matters is whether the plaintiff can prove to a Pittsburgh jury that he got ripped off – which he can’t. One point for us.”

Obviously, when I took Trial Tactics in law school I must have missed the class on “How to win your case even though your client is guilty as hell.”

“And speaking of the plaintiff,” Mr. W continued, “he’s a major whack job. The guy hates our client so much he’s taken a suite of rooms at the William Penn Hotel and plans to attend trial every day, sitting at the plaintiff’s table.”

“But that’s crazy!” I said. “The trial could go on for weeks or even months!”

“Crazy,” agreed Mr. W, “but terrific for us – the Pittsburgh jury is going to hate this guy on sight. I deposed him for fourteen hours and I can tell you he’s a foul-mouthed, sharp-elbowed, arrogant New Yorker. He’ll be yelling at his own lawyers, hollering at the judge, smirking at everything our witnesses say. Oh, yeah, they’ll hate him all right.”

“Well, that’s good, I guess.” I said. “But there’s just one problem: our client is an even bigger scumbag.”

“Truer words were never spoken. That’s why I’m not letting our client come within fifty miles of the courtroom.”

Clearly, I’d also missed the Trial Tactics class on “How to make sure the jury doesn’t find out your client is a bigger scumbag than the plaintiff.”

“Let’s talk about our esteemed colleagues on the other side of the aisle,” said Mr. W. “The plaintiff has retained a hot-shot New York plaintiff’s firm. These guys wear custom shirts, $2,000 suits, and use five syllable words, but, basically, they’re just a bunch of overgrown ambulance-chasers.

“The most important thing is that the jury get the impression these New York bozos have blown into town thinking they can just roll over the local legal talent – that’s us provincial hayseeds. We want to come across to the jury as over-matched and outgunned, but plucky – we’re doing the best we can and are gallantly standing up to the big, bad boys from New York.”

Huh?” I said. “That makes no sense at all. Reed Smith is eight times as big as that little New York firm. We could squash them like bugs!”

“You know that,” said Mr. W, “and I know that, but the jury is never, ever going to know that.”

And so, again, I’d missed the Trial Tactics class on “How to convince the jury your huge Pittsburgh law firm is being bullied by a little firm from New York.”

Digital Strategies

The case of BS v. BS was happening right at the beginning of the computer era. Nobody had PCs or laptops and only very large organizations had mainframe computers that were linked to “dumb” terminals on people’s desks.

The plaintiff’s law firm was far too small to afford a mainframe, but they had engaged a consultant who had organized the several thousand exhibits in the case and had created a computerized database showing where everything was.

Every morning before court convened the plaintiff’s lawyers would lug thirty or forty boxes of plaintiff’s exhibits into the courtroom. These boxes were snappy, custom-made things built out of some kind of space-age plastic, painted royal blue with silver accents, and featuring the plaintiff company’s logo on each box.

When the plaintiff’s lawyer rose to examine a witness, he would shoot the cuffs of his custom-made shirt out of the sleeves of his $2,000 suit, snap his fingers, and demand, “Get me Plaintiff’s Exhibit No. 818-B!”

A young plaintiff’s lawyer would consult his computer printout, go straight to the correct box, and instantly produce the right exhibit.

Reed Smith, meanwhile, had a powerful IBM mainframe burbling away in air conditioned splendor down on the third floor, and hence we were vastly better organized than the plaintiff’s lawyers. But no one would ever have imagined that was the case.

Every morning before court convened we – that is to say, I – would lug thirty or forty boxes of defense exhibits into the courtroom. But these were ordinary cardboard boxes, obviously salvaged from nearby dumpsters. They were grease-stained and waterlogged and bore logos that said “Heinz 57 Varieties” and “Pittsburgh Paints.”

When Mr. W rose to examine a witness he would approach the witness stand, but then stop and say to me, as though he’d just thought of it, “Oh, do you think you could put your hands on Defense Exhibit 1,419-C?”

I would leap to my feet, saying, “Yes, sir!” I would then rummage around in the cardboard boxes as though I was hopelessly lost and completely clueless. Sweat would break out on my forehead. I would keep this ridiculous charade going until I could see the judge was about to hold me in contempt of court, and then I would triumphantly whip out a document, saying, “Is this what you need, sir?”

Mr. W would look at it and exclaim, “Yes! That’s it!”

I swear the jury almost burst into applause.

Next up: Antitrust Is More Interesting Than You Think, Part 5

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