Managing Antitrust and Complex Business Trials-a View from the Bench

• Publication year: 2016
• Author: With Judges William H. Orrick III, Christina A. Snyder, and Jon S. Tigar Moderated by Niall E. Lynch

MANAGING ANTITRUST AND COMPLEX BUSINESS TRIALS-A VIEW FROM THE BENCH

With Judges William H. Orrick III, Christina A. Snyder, and Jon S. Tigar Moderated by Niall E. Lynch¹

Trying an antitrust or complex business case in federal court presents a significant challenge to any lawyer. Antitrust cases present unique and complex legal issues that must be conveyed in an understandable way to a jury. In addition, marshaling the facts in a clear and persuasive manner and effectively using expert witnesses creates additional challenges for trial counsel. Finally, on top of the complex legal and factual issues, trial counsel must ensure that their case does not run afoul of the District Court Judge's expectations of how the lawyers should conduct themselves in their courtroom. Understanding the perspective of the trial judge can make the presentation of your case run more smoothly and effectively.

Thus, on October 29, 2015, Judges William H. Orrick III,² Christina A. Snyder,³ and Jon S. Tigar⁴ spoke at the 25th Annual Golden State Antitrust and Unfair Competition Law Institute on the topic of managing antitrust and complex business trials. They discussed their real world experience in managing complex cases, and provided invaluable tips to litigants on how to effectively try cases in their courtrooms.

Moderator: Let's start with having each of the judges provide us with a brief background on their prior experience in antitrust and/or complex business trials. As well as any general comments and observations on presiding over complex business trials, including practice tips for lawyers trying complex cases in your courtroom.

JUDGE SNYDER: I have presided over numerous antitrust cases during the course of my career. However, I don't recall one that has gone to trial. Unfortunately, they often result in summary judgment one way or the other, and that seems to be my experience. In fact, in preparing for this panel, it turned out that the youngest among us, Judge Orrick, is the only one that's tried an antitrust case at this point in time. So it is a matter of, I guess, being in the right place at the right time.

That said, I have certainly tried many complex cases and am familiar with case management and issues of that nature. I think that one of the important things that any practitioner can do with a complex case is really to sit down and think, "How can I make this simple?"

I heard Judge Illston on an earlier panel today talk about restitution and that it is very important, if you are going to have a claim for restitution, you know exactly what that claim is. And that is often the problem in many complex cases, be they antitrust cases or other cases of that nature. So I think the best advice I can give today, and I will probably have a lot more to say, but the best thing I can say, know your case, know your evidence, know who your witnesses will be and come into court on your first occasion with as clear a concept of where you're going with the case.

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JUDGE ORRICK: I did have the good fortune of trying a Clayton Act Section 7 case as my first trial within a month of the time that I got on the bench. One of my colleagues was kind enough to give me a case that was scheduled for a five-week bench trial.

What I knew about antitrust was not very much, actually very little, except that I'm probably the only person in the room at whose house used to be, for a short period of time, a life-size cutout of Senator Sherman—because my dad was an antitrust lawyer. So that's all I knew before I got the case.

I know more now, and I have had a couple of patent trials in addition to that. I am happy to talk about the Bazaarvoice trial. There is somebody in the room who actually knows a lot more about that trial than I do, a fabulous lawyer, Peter Huston, who represented the government, but I'll have a few things to say about it too.

My tips for people here are, and it's surprising that I need to say this, but develop a theme and tell a story when you're trying a case. Remember that throughout the case, and particularly during trial, you should be thinking that you're on stage a quarter of a mile before you get to court. And if you're not treating other people really well, particularly my courtroom deputy, you can assume that I am going to know that, and you should also assume that the jury's going to pick up on the kind of person that you are. So being a good person actually matters a huge amount.

And then my final tip for you is that you need to be the master of everything you do, starting with being honest about your case, but also knowing how the technology works and being ready with deposition excerpts when you're cross-examining people. If you can't do that, you're going to be marked down by the jury or by the judge. Those are my tips.

JUDGE TIGAR: Although I have substantial trial experience, I haven't tried an antitrust case. I was on the state court for 11 years before I joined the federal bench, and I was able to try some cases when I was at the Keker firm.

Even so, I have to say, sitting next to Judges Snyder and Orrick and with this audience, I feel like I am talking about country music while I am sitting with Johnny Cash. I was able to try some complex cases while I was a lawyer at Keker. On the state court I did real estate fraud cases, a bunch of breach of contract and multi-defendant cases.

I think Judge Snyder and Orrick hit upon the same thing that I came here to discuss: simplify, simplify, simplify. The complex case you are trying is more similar to other kinds of cases than it is different. It is just more complicated. But the need to simplify and clarify is the same. I think what happens in the big cases is lawyers will get lost in the weeds. There are a few things they came to tell the court and came to tell the jury, and they have to stay focused on those things.

If you—for example, let's say you represent a defendant, and your client's conduct wasn't good but the plaintiff didn't suffer any injury. Well, if you are making 25 arguments and 24 of them are weak and the 25th one is there was no injury, you are diluting the point. It doesn't mean you concede every one of your opponent's arguments, it just means focus on the case.

I also think Judge Orrick got it right when he said, try to be a good person, and if you can't do that, pretend like you're a good person. You have to play the long game. Complex litigation trials tend to be longer than other trials, so they become an opportunity for people to show their true form—whether or not that's a good thing. Don't get excited about nick-el-and-dime controversies. Be the calmest, most efficient person in the court all the time, and you will start to become the person people gravitate towards—not just the judge, who will help you with rulings, but also the jury. You want the court to look forward to hearing from you, and I can't tell you how much of an advantage that will give you in the margin.

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I have to say, in these big cases you have to make it easy for the jury. They want to do a good job for you. They have a lot of enthusiasm. They like you. You should read the letters I get from them afterwards. They are so invested in doing a good job. If you make it hard for them, they can't do a good job. And if you make it hard for them and your opponent makes it easy, then you are shooting yourself in the foot.

Things like juror notebooks with copies of the jury instructions and the most important documents, pictures of witnesses with their names for the notebooks so they can remember who the witnesses are, stipulating to a mid-case argument when the case is so long and the jury is going to forget the testimony. Things like that, I think, can be really helpful.

Moderator: Before we get to the actual trial, let's discuss framing the issues for the trial, in particular, motions in limine and pretrial briefs. For this I'll start with Judge Orrick. What kinds of issues are effectively raised in motions in limine, which ones aren't, and specifically with regard to Daubert motions, which are quite popular for antitrust lawyers—one lawyer in an earlier panel said something about letting the dogs of Daubert out before trial. Tell us how you look at motions in limine in general and framing what will actually get before the jury or, in a bench trial, be presented before the judge.

JUDGE ORRICK: I think that dog should stay in the kennel a fair amount more than it does.

I have a rule of limiting motions in limine to 25 pages, as many as people want to bring in 25 pages. But what that rule should do, and it doesn't always, is limit the number of motions they bring.

I have a trial coming up on Monday where in those 25 pages, times two for two parties, there are, I think, 35 motions in limine. That's a little too much. Your goal should be to focus me on an issue that's prejudicial to your case or one that you want me to have a strong heads-up on so that when the issue arises, I will have thought about it. Because I am less experienced than my distinguished colleagues, I don't mind seeing the 35 motions in limine that I am going to rule on Monday because they tell me who these lawyers are and lets me think about a number of different issues I may not have considered. But I'd be selective, more selective than they are when raising them.

I think that's what I look for with respect to motions in limine. A lot of them are just sort of a waste of time, in my experience.

With respect to Daubert, particularly for the people in this room, you usually hire people who have a lot of experience, and I am usually not going to cut somebody out unless the theory is really out there. And the way that I'll know that the theory is out there is if I have considered the issue before during the course of the case, if it's been raised somehow in motions for summary judgment or in some way that I can wrap my head around it.

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But if somebody has a lot of expertise on some issue, I am going to want to hear from them.

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