The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the  Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed!  OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner.  Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. Microsoft, Bush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation pow­er­­house” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.”  Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t.  As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.