March 12, 2012

BY Todd RugeR

To defend a giant Internet corpora-tion like Yahoo! Inc., attorneys from McDermott Will & Emery

emphasized strenuous prepara-tion and the case’s human dimen-sion. Facing litigators from the well-

respected Dallas firm McKool Smith, intellectual property attorneys Yar Chaikovsky and Fay Morisseau wrote their opening statement five months in advance and spent three months on intensive trial preparations, includ-ing mock witness examinations.

They prepared the founder of

Yahoo! to present himself on the stand not as some corporate suit but rather a computer science major who dropped out of Stanford University to launch a company he was still passionate about.

The result: The jury took only 40 minutes (including a lunch break) to

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. “Our witnesses connected with the

winningHere 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, humanityVictory for Yahoo! was won through the hard work of crafting arguments and getting witnesses ready.

Fay Morisseauyar Chaikovsky

Matthew

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Yar ChaikovskY & FaY Morisseau McDerMoTT

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Trial Tips1. 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.

jury,” he said. “I think the jury saw these as people they could believe and trust.”

The verdict represented the first defense victory since 2007 in the plaintiff-friendly U.S. District Court for the Eastern District of Texas. And it came only a month after Google Inc. lost a $5 million verdict to Bedrock on the same issue, prompt-ing additional co-defendants such as Amazon.com Inc., AOL Inc. and Myspace Inc. to settle.

The team was undaunted when the co-defendants caved. “We had all prepared to make sure we were ready to try this case on our own,” Chaikovsky said. “And the client—seeing that preparation gave them that confidence.”

During the trial, each side had only 11 hours to present their case. That meant experts had to be exam-ined and cross-examined in short order. Knowing the facts inside and out let Chaikovsky make changes on the fly, he said, hitting only the most important testimony.

After the McKool Smith attorneys finished presenting their case, the McDermott team felt it was ahead. “We had done such thorough preparation we won every witness,” Morisseau said. Lead counsel Doug Cawley and Scott Hejny of McKool Smith didn’t respond to requests for comment.

One Yahoo! witness had prepared to spend 90 minutes on the stand; Chaikovsky finished with him in 30 minutes. The next expert required 25 minutes—half the time he’d prepped for. “He was able to do it because he had been working so hard,” Morisseau said of his colleague.

denial of seRvice

The dispute was over a patent Bedrock holds on a method of pre-

venting denial-of-service attacks, when outsiders overwhelm a com-pany’s computer servers by flood-ing it with traffic. Bedrock claimed Yahoo! ran a version of the Linux operating system containing its pro-cess for allowing the servers to fig-ure out when an attack was occur-ring and delete the bogus informa-tion instead of storing it, mitigating the effect.

Yahoo! argued that its software didn’t violate the patent and that it wouldn’t matter anyway, because the company had other safeguards in place. They created an anima-tion showing how Bedrock’s patent worked and contrasting it with the Yahoo! system.

The team even produced a movie to present evidence by David Barrow, director of infrastructure systems at Yahoo!. The camera fol-lowed Barrow through Yahoo! build-ing security and into its server farm, where 2,000 computers control the Web site. The movie showed how servers were set up and performed during denial-of-service attack drills.

Then Barrow stepped down from the witness box to explain the hard-ware, which the legal team had hauled into court and placed in front of the jury.

The team recognized the impor-tance of bringing Yahoo! co-founder David Filo to the stand. In the past, Chaikovsky said, jurors have made clear during debriefings that they expect to hear from top corporate executives in cases like this, with so much money at stake. When the executives don’t show, jurors pre-sume there’s a reason—and not a good one.

Plaintiffs’ attorneys often cast pat-ent cases as a lone inventor being taken advantage of by a big com-

pany. Filo’s knowledge and enthusi-asm about his company helped dis-pel that impression, Morisseau said. “The jurors are going to take that to heart,” he said. “He was a wonderful witness, and he knew the facts and the case as well as anyone in the courtroom.”

It didn’t hurt when the last Yahoo! expert witness who testified actually got a laugh. McKool Smith’s Hejny was trying to prove that Yahoo! had willfully violated the patent, and brought out a potentially damag-ing e-mail that one of the co-defen-dant companies had generated. The e-mail said that defeating Bedrock’s claims would require a “patent loop-hole expert”—someone who could weasel out on a technicality.

Are you that loophole expert, Hejny asked Joel Williams, Yahoo!’s invalidity expert.

“No, I’m not,” Williams replied. “Well, do you know one?” Hejny

continued. The Yahoo! expert shrugged,

paused, and replied: “You?” As laughter filled the courtroom,

Hejny sat down.

Todd Ruger can be contacted at truger@alm.com.

the national law journal March 12, 2012

Reprinted with permission from the March 12, 2012 edition of THE NATIONAL LAW JOURNAL © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com. #005-03-12-02