Yar Chaikovsky McDermott- Preparation Was Key
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Yar Chaikovsky McDermott- Preparation Was Key

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Article in the National Law Journal, Victory for Yahoo! was won through the hard work of crafting arguments and getting witnesses ready.

Article in the National Law Journal, Victory for Yahoo! was won through the hard work of crafting arguments and getting witnesses ready.

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Yar Chaikovsky McDermott- Preparation Was Key Yar Chaikovsky McDermott- Preparation Was Key Document Transcript

  • March 12, 2012 winning Here we highlight the fun part of the legal profession—dueling it out in the courtroom. We asked our readers to nominate trial attorneys who scored big during 2011 and who had demonstrated a track record of success. We looked for compelling stories about courtroom strategy, the courage to face long odds and victories that made a difference. These five litigators or teams all fit the bill. Preparation was the key–also, humanity Victory for Yahoo! was won through the hard work of crafting arguments and getting witnesses ready.BY Todd Ruger respected Dallas firm McKool Smith, Yahoo! to present himself on the intellectual property attorneys Yar stand not as some corporate suitT o defend a giant Internet corpora- Chaikovsky and Fay Morisseau wrote but rather a computer science tion like Yahoo! Inc., attorneys their opening statement five months major who dropped out of Stanford from McDermott Will & Emery in advance and spent three months University to launch a company heemphasized strenuous prepara- on intensive trial preparations, includ- was still passionate about.tion and the case’s human dimen- ing mock witness examinations. The result: The jury took only 40sion. Facing litigators from the well- They prepared the founder of minutes (including a lunch break) to Yar Chaikovsky & Fay Morisseau McDermott Will & Emery Trial Tips 1. Personify a corporate defendant. Use a likeable company founder to get the jury to empathize with your company’s story. 2. Put on a show. In this world of YouTube and 24/7 news, demonstrations must be engaging and easy to understand. 3. Prepare for different scenarios. Have a strategy for having co-defendants or going alone. Have a short list and a long list of questions for witnesses, to adjust for the speed of the trial. decide for Yahoo!, which avoided as much as $100 million in damages in a patent dispute with software company Bedrock Computer Technologies LLC. The deliberations were the speedi- est Morisseau had seen in 34 years. Matthew HoganShelley Eades Yar Chaikovsky Fay Morisseau “Our witnesses connected with the
  • the national law journal March 12, 2012jury,” he said. “I think the jury saw venting denial-of-service attacks, pany. Filo’s knowledge and enthusi-these as people they could believewhen outsiders overwhelm a com- asm about his company helped dis-and trust.” pany’s computer servers by flood- pel that impression, Morisseau said. The verdict represented the first ing it with traffic. Bedrock claimed “The jurors are going to take that todefense victory since 2007 in the Yahoo! ran a version of the Linux heart,” he said. “He was a wonderfulplaintiff-friendly U.S. District Court operating system containing its pro- witness, and he knew the facts andfor the Eastern District of Texas. And cess for allowing the servers to fig- the case as well as anyone in theit came only a month after Google ure out when an attack was occur- courtroom.”Inc. lost a $5 million verdict to ring and delete the bogus informa- It didn’t hurt when the last Yahoo!Bedrock on the same issue, prompt-tion instead of storing it, mitigating expert witness who testified actuallying additional co-defendants such the effect. got a laugh. McKool Smith’s Hejnyas Amazon.com Inc., AOL Inc. and Yahoo! argued that its software was trying to prove that Yahoo! hadMyspace Inc. to settle. didn’t violate the patent and that it willfully violated the patent, and The team was undaunted when wouldn’t matter anyway, because brought out a potentially damag-the co-defendants caved. “We had the company had other safeguards ing e-mail that one of the co-defen-all prepared to make sure we were in place. They created an anima- dant companies had generated. Theready to try this case on our own,” tion showing how Bedrock’s patent e-mail said that defeating Bedrock’sChaikovsky said. “And the client— worked and contrasting it with the claims would require a “patent loop-seeing that preparation gave them Yahoo! system. hole expert”—someone who couldthat confidence.” The team even produced a movie weasel out on a technicality. During the trial, each side hadto present evidence by David Are you that loophole expert,only 11 hours to present their case. Barrow, director of infrastructure Hejny asked Joel Williams, Yahoo!’sThat meant experts had to be exam-systems at Yahoo!. The camera fol- invalidity expert.ined and cross-examined in short lowed Barrow through Yahoo! build- “No, I’m not,” Williams replied.order. Knowing the facts inside and ing security and into its server farm, “Well, do you know one?” Hejnyout let Chaikovsky make changes onwhere 2,000 computers control the continued.the fly, he said, hitting only the most Web site. The movie showed how The Yahoo! expert shrugged,important testimony. servers were set up and performed paused, and replied: “You?” After the McKool Smith attorneys during denial-of-service attack drills. As laughter filled the courtroom,finished presenting their case, the Then Barrow stepped down from Hejny sat down.McDermott team felt it was ahead. “We the witness box to explain the hard-had done such thorough preparationware, which the legal team had Todd Ruger can be contacted at truger@we won every witness,” Morisseau said. hauled into court and placed in front alm.com.Lead counsel Doug Cawley and Scottof the jury.Hejny of McKool Smith didn’t respond The team recognized the impor-to requests for comment. tance of bringing Yahoo! co-founder One Yahoo! witness had preparedDavid Filo to the stand. In the past,to spend 90 minutes on the stand; Chaikovsky said, jurors have madeChaikovsky finished with him in 30clear during debriefings that theyminutes. The next expert required 25 expect to hear from top corporateminutes—half the time he’d preppedexecutives in cases like this, withfor. “He was able to do it because he so much money at stake. When thehad been working so hard,” Morisseau executives don’t show, jurors pre-said of his colleague. sume there’s a reason—and not a good one. Denial of service Plaintiffs’ attorneys often cast pat- Reprinted with permission from the March 12, 2012 edition of THE NATIONAL LAW JOURNAL © 2012 ALM Media Properties, The dispute was over a patent ent cases as a lone inventor being LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.comBedrock holds on a method of pre- taken advantage of by a big com- or visit www.almreprints.com. #005-03-12-02