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

1. 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 suit
T
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 he
emphasized 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 40
sion. 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 Hogan
Shelley Eades
Yar Chaikovsky Fay Morisseau
“Our witnesses connected with the

2. the national law journal March 12, 2012
jury,” 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 to
defense victory since 2007 in the Yahoo! ran a version of the Linux heart,” he said. “He was a wonderful
plaintiff-friendly U.S. District Court
operating system containing its pro- witness, and he knew the facts and
for the Eastern District of Texas. And
cess for allowing the servers to fig- the case as well as anyone in the
it 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 actually
ing additional co-defendants such the effect. got a laugh. McKool Smith’s Hejny
as Amazon.com Inc., AOL Inc. and Yahoo! argued that its software was trying to prove that Yahoo! had
Myspace 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. The
ready to try this case on our own,”
tion showing how Bedrock’s patent e-mail said that defeating Bedrock’s
Chaikovsky 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 could
that 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!’s
That 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?” Hejny
out 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 made
Chaikovsky finished with him in 30clear during debriefings that they
minutes. The next expert required 25
expect to hear from top corporate
minutes—half the time he’d preppedexecutives in cases like this, with
for. “He was able to do it because he
so much money at stake. When the
had 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.com
Bedrock holds on a method of pre- taken advantage of by a big com- or visit www.almreprints.com. #005-03-12-02