Special Edition: Florida's Cigarette Victory (continued)
Making Big Tobacco Pay the Damages
The Battle Strategy
Early
on it became obvious to us that we needed an efficient and consistent
case strategy to prevail in the case. This revelation came after the first
several hearings where there would be three or four of us present from
our Trial Team confronted in the courtroom by 20 or more Tobacco Industry
lawyers from three or four huge law firms. The Tobacco Industry’s resources
were absolutely bottomless; their financial ability and manpower were
unlimited. They had an obvious strategy of overwhelming us with work,
breaking our spirit early, and, at a minimum, putting us in a position
of conceding to delays. In addition to our “no extensions” policy, we
had to have an overall plan that would take us through all stages of the
case.
Many of the law firms on the Trial Team, including ours, had seen these tactics before. The industrial bully defendant will give their defense attorneys a blank check and tell them to cause us as much pain as possible. What we consistently see in these situations is numerous attorneys assigned to defend the case who are simultaneously working on the case with little or no knowledge of what their partners, associates, and cooperating defense firms are doing. We have consistently found that in these situations, this conglomerate of attorneys can be quite vulnerable. The problem seems to be that not only are we inundated with paperwork, but the defense attorneys are likewise inundated by their own multiplicity of efforts and cannot keep up with where each of them is in the case at any given time. Each defense attorney or firm sets itself on its own course in the case independent of the other firms or attorneys and, sooner or later, no one individual has a good grasp of where their case is, procedurally, factually or historically. After the first several hearings, we could see this happening to Tobacco and planned our strategy around it.
We decided we would divide the case up by issues and assign the issues to Team members with no redundancy and little or no overlap. The trap here was that although each individual Team member may thoroughly know his area of the case, it was going to be impossible for that same Team member to have a working knowledge of the overall facts and law of the case. Without this overall knowledge of the facts and legal issues, and how each facet blended in, we would be in the same boat as Tobacco with Team members being unable to integrate their areas of expertise into the case at any particular proceeding. On the other hand, because the judges heard every motion and participated in every proceeding, they would at least have a working knowledge of the overall direction each side of the case was taking. We knew from past experience that the side that would maintain the most credibility with the Court was going to be the one with the best overall working knowledge of the case. That had to be us. Our solution was to designate one Team member to be responsible for a continuous working knowledge of the entire case and have him present and participating at every proceeding. W.C. Gentry, from Jacksonville, took on this responsibility.
From early in the case, W.C. either handled or participated in virtually every courtroom proceeding. Even when I was there handling motions regarding my assigned portion of the case, W.C. was fully briefed on the issues and would ultimately tie the particular motion I presented to the court into the overall case as it stood at the time.
As it turned out, our plan worked better than we ever dreamed. Both Judge Rutter and Judge Cohen soon learned that not only were we always totally accurate on the facts but, contrary to the Tobacco lawyers who came and went, they could always depend on W.C. Gentry to tie every motion or issue together with the overall case. An example of how this worked occurred in some motion hearings towards the end of the case.
As the trial approached, more and more different lawyers began to show up on behalf of the Tobacco Industry. Tobacco was bringing in their “big guns,” and for a while it seemed that every time I went to court, there were new lawyers standing up in front of the judge arguing for the Tobacco Industry. Although the big guns were in fact outstanding lawyers, they had minimal involvement with our case prior to this point and their frame of reference regarding the facts and law of the case was very limited. Meanwhile, we steered our same course with W.C. Gentry always present to tie everything together and add each hearing and ruling to his virtually perfect knowledge of the case. As the new Industry lawyers appeared and took over the case for trial, any continuity the Tobacco Industry had with the case and relationship with the judge disappeared. It actually got to the point that W.C. would stand up after one of the new Tobacco lawyers argued, and present the court with an overall view.
It got so bad as we approached trial that one morning W.C. and I were arguing some motions in front of Judge Cohen and the big gun Industry lawyer was so unfamiliar with the present status of the case that W.C. and I made a bet. The bet was as to when Judge Cohen was going to interrupt the Tobacco lawyer’s argument and ask him if he was responding to the same motion we had just argued. At this point in the case, the motions were complex and all interrelated to everything that had happened in the case over the past several years. It was impossible to argue any one issue without a working knowledge of the entire case. Sure enough, a few minutes into the Tobacco lawyer’s argument, Judge Cohen politely interrupted him and asked him if he understood the nature of our motion, which he obviously did not due to his lack of knowledge of the overall case. Needless to say, this was unnerving to that lawyer and his day did not get any better. .
