Check out recent decisions and opinions.
Coordinated Witness Preparation for Employment Litigation
- June / July 2012
The defense of a labor and employment case that is headed toward trial is often based on the testimony of a variety of employees, most of whom are disinterested in the trial and appalled at the prospect of testifying. According to the author, counsel can create a strong defense out of this disadvantageous scenario through coordinated witness prepa-ration, which he compares to making a wall out of individual bricks. He suggests gathering all the testifying wit-nesses in one place for a coordinated series of sessions, over a number of days.
Intellectual Property Cases: Ten Lessons From Pre-Trial Research
Ellen Brickman and Julie Blackman
- March 27, 2012
Intellectual property cases pose special challenges – but also special opportunities – for both attorneys and jurors. The material is typically complex, and often completely new to the jurors. Attorneys and witnesses are called upon to teach this material in a way that is clear, engaging and persuasive. While this can be daunting, jurors’ lack of familiarity with the material also provides an opportunity to shape their attitudes without having to overcome strong pre-existing beliefs about the topics at hand. In over 20 years of conducting pre-trial research in intellectual property cases, we have seen many commonalities in how mock jurors and focus group respondents across the country think about such cases. We have learned a great deal from these research activities, and share some of those lessons with you here.
Judges Are People, Too: Getting To Know Your Judge By Doing A Judge Study (pdf)
- November 1, 2011
Judge studies can enhance attorneys’ preparation for any sort of hearing or trial over which a judge presides. Applying the results of judge studies enables attorneys to create a more personalized intellectual context for the development of persuasive themes and related strategic arguments. Trial consultants with training in psychology can help you to carry out and to implement a systematic study of your judge.
The Right Burden For Proving Patents Invalid: Supreme Court Decision Pending (pdf)
Ellen Brickman and Julie Blackman
- June 1, 2011
At this writing, the Supreme Court is deciding a question that could dramatically change the face of many patent trials: What evidentiary standard should be used in decisions regarding the validity of a patent? In this article, we consider how jurors reckon with invalidity challenges, and how their deliberations might be affected by a decrease in the burden of proof required to prove a patent invalid.
Playing the Other Side’s Hand: Strategic Voir Dire Technique
- March 30, 2011
Voir dire is structured like an important strategy game with moves and counter-moves based on the opposing action. Voir dire plans, however, often fail to take into account the other side’s strategy, and their actions based on their thinking. Higher-level strategic thinking used by people like game theorists, professional poker players and military strategists involves thinking from the opponent’s point of view and adjusting one’s own strategy accordingly.
Mocking The Entire Bar: Applying Jury Research Techniques To Mock Judicial Panels And Mock Arbitrations (pdf)
- March 2011
As an increasing amount of litigation moves from jury trials to bench trials and arbitrations, jury consultants are increasingly applying their expertise in running mock jury exercises to running mock judicial panels and mock arbitrations as methods to see into the black box of professionals’ decision-making processes.
Reverse Engineering Discovery: Case Valuation And Issue Analysis (pdf)
Metropolitan Corporate Counsel Interview with Paul Neale
- November 2010
The Editor of the Metropolitan Corporate Counsel interviews Paul J. Neale,President & CEO, DOAR Litigation Consulting LLC.
Evidence Considerations In Employment Disputes – Part I (pdf)
- October 2010
This is the first of a two-part article focusing on the management of employment disputes. The second article will discuss how to best prepare an employment litigation for trial based on the jury research we have conducted and the verdicts and settlements that have resulted in cases that we have supported during trial.
Novartis Trial Holds Key Lessons For Attorneys (pdf)
- May 26th, 2010
DOAR's Trial Consulting Director, Roy Futterman, was featured in Law 360 Article: Novartis Trial Holds Key Lessons For Attorneys
The article was published on Law 360's website on May 26, 2010.
Legal support companies pick up where law firms lay off
Published by the Long Island Business News
- August 2009
Law firms may be downsizing, thanks to the punishing economy, but businesses that support them are holding their own.
And some are even growing, thanks to the sputtering economy.
From the Conference Room to the Courtroom: How a Change in Setting Impacts Witness Preparation
Alexandra Rudolph, Trial Consultant, DOAR Litigation Consulting
- July 2009
This article explores how the environment where a witness is prepared affects testimony’s substance and style. Transitioning between a conference room and a courtroom setting can have a dramatic impact on what witnesses say and how they say it. While many lawyers may conduct witness preparation in settings that fall somewhere in between these two extremes, the way witnesses respond to the transition provides valuable insights into preparing witnesses.
A Day in the Life of a Forensic Examiner (pdf)
Robert Fried, Forensic Examiner, DOAR Litigation Consulting - May 2007
Digital forensics involves the identification, collection, documentation, acquisition and analysis of electronic data, in such a way that the integrity of the source media is preserved, as to allow for its admissibility within a court of law.
A Day in the Life of a Forensic Examiner 01 (pdf)
Managing Discovery of Electronic Information (pdf)
A Pocket Guide for Judges. By Barbara J. Rothstein, Ronald J. Hedges and Elizabeth C. Wiggins. Published by the Federal Judicial Center, 2007.
The Human Resources Profession Catalyzes Change to Mitigate Risk: Electronic Discovery, HR Advisor (pdf)
Information Management and Corporate Culture On-the-Line. DOAR Executive Vice President Paul Neale co-authors.
Pulling the Antitrust Fire Alarm: Mock Investigations (pdf)
DOAR General Counsel Sheldon Greenblatt authored this article for The Antitrust Compliance Bulletin - Legal Developments, Practical Guidance and News Compliance and Ethics Committee ABA Section of Antitrust Law, March 2007.
When Less Becomes More: Making the Case for a Discovery Strategy (pdf)
Written by Anne Kershaw, Esq., an experienced litigation attorney and the founder of A. Kershaw, P.C. // Attorneys & Consultants, this article appeared in "Digital Discovery & e-Evidence," Vol. 7, No. 1, January 2007. It was a feature story in the Vendors & Technology section. "Digital Discovery & e-Evidence" is published by Pike & Fischer, a BNA Company.
Hedge Funds: Best Practices for Responding to Government Investigations (pdf)
The current business environment is characterized by aggressive regulatory enforcement, civil litigation and criminal prosecution involving allegations such as corporate financial fraud and breach of duty by officers and directors. In regards to pending regulations for hedge funds, we will be discussing internal vs. government investigations, protecting evidence, and preparing a uniform defense. The need to understand the regulatory process, internal investigations and the strategies for responding is now more important than ever.
This presentation was featured in a webinar presented by DOAR Litigation Consulting, Baker Hostetler LLP and Marcum & Kleigman LLP.
Paul Neale's Testimony (pdf)
On Monday, January 29th, DOAR Executive Vice President Paul Neale testified before the Advisory Committee on Evidence Rules regarding proposed rule FRE 502 regarding privilege.
Electronic Discovery Checklist (pdf)
This useful checklist features important steps that can be taken to ensure litigation readiess under the new Federal Rules of Civil Procedure for discovery.
Looking Ahead: What the Proposed SEC Regulations Mean to Hedge Fund Managers (pdf)
In light of recent publicity surrounding the proposed regulations for registered and unregistered investment advisers — issued in response to the D.C. Circuit Court of Appeals decision in Goldstein v. SEC, which called into question the SEC’s ability to bring enforcement actions under the 1940 Advisers Act — DOAR spoke with an industry expert to obtain an insider’s view on the topic.
Paul Neale's Letter to the Committee on Rules of Practice and Procedure (pdf)
Paul Neale composed the following letter to Mr. Peter G. McCabe, Secretary of the Committee on Rules of Practice and Procedure, regarding the invitation extended to Paul to testify at the Evidence Rule Committee hearing on January 29, 2007 in New York, NY.
A Critical Examination of the Need for Litigation Technology in ADR (pdf)
Traditionally, courtroom technology has been reserved for precisely that — the courtroom.
The Next Chapter (pdf)
Electronic discovery's latest phase poses great risk for firms, clients.
Proactive on Backups (pdf)
Recognizing a significant source of discoverable data.
Zubulake V (pdf)
Latest decision offers guidance on preserving data
Managing Data in Response to Regulatory Investigations (pdf)
Instant access to data has become critical as a result of the recent onslaught of regulatory investigations and related class-action litigation.
Regulatory Investigations (pdf)
Proper steps must be taken to preserve discoverable data.
- White Papers
Sample Rule 30(b)(6) Deposition Questions (pdf)
Counsel will have his/her own style for framing questions of the Rule 30(b)(6) deponent. This document contains suggested subject areas to address during deposition.
Proposed Model Rule on E-Discovery (pdf)
Fulbright & Jaworski proposes local rule to the Ninth Circuit and District Courts in the Ninth Circuit
The Art of War (pdf)
Sam Solomon looks at pursuing electronic evidence as part of a corporate opportunity.
The Top 10 Challenges & Solutions (pdf)
Gene Klimov analyses the challenges and solutions in handling electronic evidence successfully.
Two Tiers and a Safe Harbor (pdf)
Ken Withers describes how federal rulemakers are grappling with electronic discovery.
- Recent Decisions
DOAR Assists Wachtell Lipton Rosen & Katz and Vulcan Materials in Obtaining Injunctive Relief in Delaware Chancery Court
DOAR congratulates William Savitt and the entire trial team at Wachtell Lipton Rosen & Katz on their excellent work and well-deserved win on behalf of their client, Vulcan Materials. DOAR supported the victory in another closely watched M&A-related trial in the Delaware Court of Chancery. The case, in which certain confidential materials intended for use during an initial friendly exchange were then misused when Marietta pursued a hostile takeover, was one that had not been seen before in Delaware or anywhere else in the United States. Martin Marietta and Vulcan, the two largest U.S. suppliers of construction-materials, have been locked in a bitter takeover battle since December. Both Vulcan and Martin Marietta are large players in the construction aggregates market, and when merger discussions broke down, Martin Marietta promptly pursued a hostile takeover of Vulcan basing their bid on the confidential information disclosed during due diligence. This was a very fast moving and challenging Delaware case, going from the initial filing to closing arguments in three months, culminating in a one week long trial, overseen by Delaware Chancery Court Chancellor Leo Strine Jr., in early March. DOAR’s work included consulting at trial, graphics consulting and design for openings and summation and technology for the war room and courtroom.
DOAR Assists in Victory of Donald Drapkin's Breach-of-Contract Lawsuit Against Macandrews & Forbes, Holding Company Owned by Ronald Perelman
DOAR congratulates Elkan Abramowitz of Morvillo Abramowitz, David Dunn of Hogan Lovells and their combined trial team including Thomas Keane, Sid Kamaraju, Christine Wagner, Christopher Robbins and Sarah Gregory for their excellent work and well-deserved win. DOAR supported the victory secured by Donald Drapkin, former Vice Chairman for twenty years under Ronald Perelman, against MacAndrews & Forbes. After just over an hour of deliberations, a SDNY jury of six women and two men ruled in favor of Drapkin, finding that Drapkin had not breached the Separation Agreement and holding Perelman responsible for paying Drapkin the $16 million promised him. DOAR's Julie Blackman, Ellen Brickman, Roy Futterman, Melissa Pomerantz and Andrew Cepregi advised Drapkin's legal team based on pre-trial research. DOAR’s work included consultation on the opening and summation, jury selection, graphics and courtroom technology support.
DOAR's Julie Blackman Assists in the Defense of Barbara Sheehan
Julie Blackman supported the defense of Barbara Sheehan, a Queens woman who killed her husband, a former police sergeant. Sheehan shot her husband 11 times after he pointed a gun to her head. After the month-long trial, the defendant was found not guilty of second-degree murder, but was found guilty of a lesser gun charge. The defense argued that Mrs. Sheehan acted in self-defense when fatally shooting her husband. Julie advised the defense team, led by Michael Dowd, by providing trial strategy consulting, witness preparation and assistance with jury selection. DOAR's work on this case was provided on a pro bono basis given Julie's lifelong advocacy for battered women.
DOAR Litigation Consulting Assists Dewey & LeBoeuf in Victory for the Republic of El Salvador
DOAR Litigation Consulting provided presentation support for Dewey & LeBoeuf and the Republic of El Salvador in the preliminary phase of arbitration at the International Centre for Settlement of Investment Disputes (ICSID) in Washington DC. This was the first time a CAFTA Party prevailed in ending an entire arbitration in the preliminary objection stage. DOAR’s trial consultants developed graphics and provided presentation consulting for the Dewey & LeBoeuf team during the hearing.
Two U.S. companies, Commerce Group Corp. and San Sebastian Gold Mines, Inc., initiated CAFTA arbitration against El Salvador after the Government revoked their environmental permits to extract and process gold in El Salvador. Following two rounds of written submissions and an oral hearing on November 15, 2010, the tribunal issued its Award finding that the dispute was not within its jurisdiction and competence and dismissing all claims. The tribunal agreed with El Salvador that a waiver "must accomplish its intended effect," and that the claimants did not act in compliance with the waivers because they failed to discontinue the domestic proceedings. The tribunal's decision on the waiver issue resulted in a complete victory for El Salvador.
DOAR Litigation Consulting Supports Airgas and Wachtell Lipton in Successful Poison Pill Defense
In what was seen as one of the most important corporate litigation decisions in recent years, Chancellor William Chandler III ruled yesterday that Wachtell Lipton Rosen & Katz and its co-counsel, Potter, Anderson & Corroon, had proved that the Board of Directors of Airgas had acted appropriately in turning down as inadequate a bid of $70 per share from rival Air Products, upholding Airgas’ poison pill defense to the offer.
DOAR provided graphics consulting and design services and trial presentation consulting in court for two separate week-long trials and a closing argument which took place last week. In only 8 total trial days, there were over 25 witnesses and over 1000 exhibits. A team of DOAR consultants was on hand 24/7 to support witness preparation, document pre-treatment and display, and demonstrative conceptualization and development. Andy Cepregi, a Director at DOAR, led the company’s efforts and presented the evidence during the trials.
During Marc Wolinsky's closing, DOAR's multimedia department edited portions of the film "A Streetcar Named Desire" to coincide with Wolinsky’s argument that Air Products was asking the Airgas board to leave the fate of the company’s shareholders to "the kindness of strangers."
DOAR has supported several cases before Chancellor Chandler and other Chancery Court judges including IAC v. Liberty Media, Hexion v. Huntsman and Rohm & Haas v. Dow Chemical with Wachtell Lipton.
DOAR is very proud to have been a part of this great victory for such a great client as Wachtell. Mr. Wolinsky had this to say about DOAR’s contribution: “Andy and the DOAR team were terrific to work with and, as usual, provided unparalleled insight and an unrelenting commitment to provide us with what we needed to make our client’s case to the court.”
Justice Yates Vacates Conviction of Marsh McLennan Executives
Judge Yates ruled yesterday to overturn the convictions of the two Marsh McLennan executives (Gilman and McNenney) who were tried in 2007 because the prosecutors had failed to turn over evidence that would have likely led to a not guilty verdict. This evidence included 700,000 pages of documents produced during the second trial of Marsh executives who were tried a year later. Aside from supporting all of the defendants during discovery and during two marathon trials, DOAR was instrumental in auditing the government's productions and reporting on the Liberty Mutual documents that proved to be exculpatory to the defendants. Our clients at Proskauer and at Cooley Godward represented the two executives who were affected by yesterday's ruling.
DOAR Provides Trial Consulting Services in Victory for 5,600 Women in Gender Discrimination Class Action Trial Against Pharmaceutical Giant
DOAR Litigation Consulting LLC supported the Plaintiffs’ and their team in obtaining a landmark verdict for the class of 5,600 current and former female employees of Novartis Pharmaceuticals Corporation before Judge Colleen McMahon in the United States District Court for the Southern District of New York. The law firm representing the class was Sanford Wittels & Heisler LLP.
Read the detailed press release here
Three former Marsh executives found not guilty. DOAR supports the legal defense teams throughout People v. Doherty et al.
DOAR Litigation Consulting LLC has supported the legal defense teams which obtained the acquittal of three former Marsh McLennan executives during their 11-month trial before Judge James Yates in the New York State Supreme Court in Manhattan. The law firms representing the 3 defendants were Blank Rome LLP, Hinshaw & Culberson, and Driscoll & Redlich. On October 26, 2009, following an eleven month trial, New York State Supreme Court Judge James Yates acquitted three former Marsh executives of felony charges stemming from alleged bid-rigging, price-fixing, and collusion activities. Defendants Greg Doherty, Kathleen Drake & Joseph Peiser were indicted in 2005. They were among eight former Marsh executives charged with colluding with brokers at insurance carriers such as American International Group (AIG), Zurich, and others to obtain intentionally, non-competitive or fake quotes for other corporate clients to suppress competition.
EDNY Judge rules in favor of CARCO Group and Farrell Fritz Partner James Wicks in employment contract trial.
In an April 21, 2009 decision EDNY Magistrate Judge Lindsay ruled that Drew Maconachy violated the terms of his employment contract with CARCO and ordered him to pay $1,791,356 plus all attorneys' fees and interest. The decision came after a 2-week bench trial in July 2008.
DOAR Litigation Consulting provided James Wicks and Farrell Fritz with a full range of Trial Consulting Services including visual strategy consultation, witness preparation, graphics, trial presentation and technology.
DOAR assists Farrell Fritz P.C. in achieving defense verdict in class action employment jury trial
On April 03, 2009 following 1 week of trial in front of Judge Baer a SDNY jury returned a defense verdict after 3.5 hours of deliberation. In a text book example of DOAR’s Discovery to Decision model, Farrell Fritz, Partner Domenique Camacho-Moran utilized many of the weapons in the DOAR arsenal including discovery consulting, forensic data acquisition, focus group and mock trial research, witness preparation, expert testimony, the development of analytical graphics, trial presentation and courtroom technology. DOAR was able to help its client develop, communicate and execute an effective trial strategy and gain a complete defense victory in Mendoza, et al. v. Delgado Travel Agency, Inc., et al.
DOAR Supports Epstein, Becker & Green in obtaining unanimous jury verdict in the Denise Romano v. New York Presbyterian Hospital trial.
This whistleblower case claimed that Epstein, Becker & Green’s client, New York Presbyterian Hospital, was involved in a conspiracy that led to the false billing of Medicaid for approximately 1,800 births between 1996 and 2000. After three weeks of trial in SDNY the jury returned with a unanimous defense verdict in favor of our client on all three claims in question. DOAR provided trial consulting services including analytical graphics design and creation, trial presentation consulting and technology.
DOAR Supports WLRK in Rohm & Haas/Dow Chemical Merger
DOAR’s Trial Consulting practice group worked hand-in-hand this weekend with Rohm & Haas lead counsel Marc Wolinsky and Wachtell, Lipton, Rosen & Katz to prepare for their trial in Delaware Chancery Court involving Rohm’s merger with Dow Chemical. One of the more closely watched M&A cases in the past few years, this dispute arose from Dow’s pulling out of the agreed-to merger due to their decline in assets in the recent economic downturn. In preparation for trial, DOAR’s team worked round the clock with many Wachtell lawyers creating document displays, video testimony for impeachment, and persuasive graphic demonstratives. Just moments before the trial was set to begin yesterday, the two companies agreed to go through with $15 billion the merger as planned. Wachtell is considering the outcome as a great victory, as does DOAR.
DOAR supports Spears & Imes and Anthony Ostlund Baer Louwagie & Ross in $141 million victory against Banc of America.
On Thursday, Dec. 4th, a federal jury in the Southern District of New York found unanimously that Banc of America committed fraud and awarded damages in the amount of $141 million to eight investment banks including AIG Global Securities, AIG Life, Allstate, International Finance Corporation (IFC), Société Générale, Travelers, Bank Leumi USA, and Bayerische Landesbank. The fraud involved providing false loss numbers about an investment trust offered by furniture retailer Heilig-Meyers to the banks, while at the same time keeping a second set of figures internally that showed the actual picture of the trust's worse condition. DOAR provided consulting services for the 6-week long trial, including the development of graphic demonstratives, in-court presentation of key documents, video depositions and graphics, as well as expert testimony related to discovery issues and war room support.
DOAR assists Kasowitz, Benson, Torres & Friedman and Southern Union Company in gaining acquittal by jury on two of three charges brought by the US government
On October 15th, 2008, a federal jury in the District of Rhode Island returned a partial verdict in favor of Southern Union Company. DOAR provided trial consulting services including graphics consultation and design, trial presentation and courtroom and war room technology in support of the twelve-day proceeding before Judge William E. Smith. Kasowitz Benson and Southern Union were both pleased with the outcome. After the verdict, attorney Dan Fetterman of Kasowitz commented on DOAR’s performance. ”I’ll never go to trial with any other team.”
- Case Studies
Turning voluminous documents into winning graphics (pdf)
DOAR represented the defendant in this class-action lawsuit brought under the Fair Labor Standards Act. In this case, the plaintiffs alleged that the defendant employer had failed to pay them for all hours they worked, instead paying them a fixed salary. Because the defendant did not maintain an official time-clock or consistently keep time sheets, the plaintiffs relied on the absence of such records to make their claim. All told, plaintiffs sought $23 million in damages.
A winning strategy for fast moving litigation (pdf)
In the last days of 2007, United Rentals, Inc., sued Cerberus Capital Management to compel specific performance of a $7 billion buyout. In this case in the Delaware Court of Chancery, Cerberus successfully argued that specific performance was not appropriate in this case, based on the history of the contract negotiations.
Built to last? (pdf)
In this breach of contract construction case, presided by Judge Gammerman, The New York Times claimed that the defendant, Bovis Lend Lease Corporation, breached its contract in the construction of sewer and fire protection systems at The New Times’ new state-of-the-art printing facility in College Point, Queens. DOAR’s client, Proskauer Rose, helped to prove, through the use of graphic animations, that the defendant failed to ensure that construction crews followed the engineering and architectural plans while building the sewer and fire protection systems.
One vs. Two: It’s all about belief. (pdf)
Wachtell, Lipton, Rosen & Katz, counsel for World Trade Center Properties LLC and Silverstein Properties, successfully argued during the second phase of the trial that the 9/11 terrorist attacks on the World Trade Center towers constituted two separate “occurrences” under the terms of the insurance policies. Nine insurance companies involved in the second phase of the litigation had argued the coordinated attack of two aircraft only constituted one “occurrence” necessitating one payment of $1.1 billion.
A service. Just like any other. (pdf)
Winston & Strawn, counsel for Yahoo! which acquired LAUNCHcast shortly after the lawsuit was filed in 2001, successfully argued that the streaming internet radio application did not infringe the copyrights of music owned by BMG. BMG argued that LAUNCHcast was an interactive service and therefore was not eligible for statutory licensing provided by Congress in the 1998 Digital Millennium Copyright Act. They argued that Yahoo! was liable for $72.2 million dollars in damages.
Best offense? Great defense. (pdf)
Wachtell, Lipton, Rosen & Katz, counsel for Invemed Associates, LLC, successfully defended the company against profit-sharing charges brought by the National Association of Securities Dealers. The NASD Department of Enforcement (DOE) hearing panel exonerated Invemed of all charges that it illegally shared in the profits of its customers in a 94-page decision after an extensive 17-day hearing.