Anatomy of a $32.3 Million Victory: three in a series (preparing for trial)

When the case was remanded back to the Ohio state court, I reviewed with care our complaint and spent much time editing it to make it clearer and broader. We added the failure to warn.

Then we looked at the damages. Because a big percentage of our practice is legal malpractice cases, we were familiar with the case within a case doctrine: if a lawyer screws up a litigation matter, to win the malpractice claim you must prove what you would have obtained in the underlying litigation matter but for the lawyer’s malpractice. That’s why legal malpractice cases are complex: you often must prove two cases in one.

Related to this was the question of damages: were we entitled to recover what we actually lost because of the disqualification, that is, the difference between settlements we were coerced into making versus what we would have obtained with success in the ITC? Or were we limited to seeking a refund of the legal fees that were spent?

To review this, we turned to our most experienced lawyer, Kristi Browne. Over weeks, her research and analysis—with the help of Peter Evans--was conducted, argued about, tested, and analyzed. When completed, we revised our complaint again and were confident we could recover what we had lost.

Depositions fortified our analysis. The leading lawyer for Dentons admitted that he would have proved infringement in the ITC. He admitted that he never warned us of the possibility of disqualification or advised how to counteract it once it occurred. He admitted—as he had to—that Dentons had informed us that the conflict had been cleared when it wasn’t.

Kristi and Dr. Costin also recruited outstanding experts. Charles Schill had been an ITC staff attorney, helped write the rules for the ITC proceedings, and had handled more than 120 ITC cases and had obtained over a dozen General Exclusion Orders (the order Dentons was engaged to get because it would stop the importation of infringing products). Robert Krupka was a former partner of Kirkland & Ellis who had tried many ITC cases. Walter Rekstis was a former ethics counsel for Squire Patton Boggs. Justin Lewis was the managing Director of Ocean Tomo, a firm that analyzes financial aspects of patents.

We had many discussions about themes to stress and evidence to introduce. We engaged Phillip Miller as a jury consultant and mock tried the case. If we were betting on Dr. Costin and the case, we were going to go all in. The mock trial convinced us to stress one theme that we hadn’t planned to emphasize. We refined our approach for the trial.

The trial judge who had been handling the discovery phase of the case gave way to another Judge assigned to try the case.?Judge Janet Burnside is a very well-respected trial Judge. She moved the case to trial.

Amazingly, there were no further significant settlement discussions. Close to trial, Dentons told us informally that we couldn’t prove the case within the case. The tardiness in bringing this up made us think that they had only just discovered the issue that we had planned for since 2016.

We liked our results in the mock trial; we didn’t respond to the bluster; and we resolved not to make the first move for a settlement.

Next: the trial

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#JustinLewis

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#HonJanetBurnside