Matters Column

Six days in court — almost as fun as a Christmas Party

January 6, 2017
| By Bill Rohn |
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I missed the office Christmas party. Doing so was one benefit of having a six-day trial 116 miles away.

It wasn't just me who missed the holiday luncheon. My partners, Joe and Tim, and legal assistant, Cheri, each spent six nights in a hotel — including evening strategy sessions in a conference room — trying to win an overseas-based client's battle with its ex-employee.

Our plaintiff sued its former manager for taking a job with a competitor seven weeks before resigning and then sharing confidential information and trade secrets with the competition. We fought over whether the defendant did what we said he'd done, thereby costing the plaintiff millions of dollars in sales.

For nearly 25 months after the complaint was filed, the defendant offered little excuse as to why he was working for two companies at once. He claimed he never used information transferred from his company computer. He said he had merely attempted to retrieve pictures of his son stored on the device.

Here are the highlights:

Take Day 1: Our case was tried before a judge, without a jury, and the highlights of our first day included the court hearing arguments on issue after issue in an attempt to streamline the subsequent presentation of witnesses. Joe and Tim went chapter and verse through the law of trade secrets and confidential information. They also offered finely woven arguments on whether our adversary's failure to share information requested before trial justified rulings barring the defendant from presenting evidence.

Day 2 began with a twist: Because trial had been rescheduled twice, the defendant asked to present a very busy expert witness — a CPA who opined our plaintiff had suffered no damages — as the first witness of the trial. That's an awfully odd way to begin; in other words, the defendant presented a witness to refute the plaintiff's testimony before any plaintiff witness had actually testified. 

Trial Day 3 followed a weekend: During the break, we edited and reshaped much of a trial presentation that we had previously thought was "good to go" on Day 1, because there is no witness examination that cannot be changed in light of what an earlier witness said. The good news was that our witnesses honored their oaths, testified in support of the argument that our "trade secrets" truly were "trade secrets" and held firm against cross-examination.

Unfortunately, our client representatives didn't see much of what occurred. Opposing counsel — perhaps fearing our witnesses would “learn” from each other's testimony — requested any witness who had not already testified be sequestered. Sequestered is a fancy word meaning our client representatives, who intended to both testify and monitor trial, had flown thousands of miles only to be ordered to sit in a hallway, unable to hear the evidence.

Day 4: We all got along. The first day of a trial can be like the opening kickoff of a Michigan State/Michigan football game, with all of the attendant woofing and displays of 'dis-affection' between the combatants. Eventually, even lawyers recognize we can be disagreeable people, but we are not always horrible people. Thus, on Day 4, opposing counsel and opposing witnesses began to exchange greetings.

Day 5: Our plaintiff attempted to document damages. The highlight was watching my partner, Tim, a Calvin College political science major, skillfully guide a computer forensics expert through testimony concerning what had been downloaded from the defendant's computer. After that, Tim orchestrated an accountant's presentation of a multimillion-dollar damage claim.

The down side was good work takes time, such that the court announced concerns we would not finish before Christmas, thereby teeing up potential additional January trial dates.

Fortunately, our judge was skilled at moving us along. On Day 6, we moved as quickly as we had moved in 25 months. The day's highlight occurred when the defendant responded to a final question on cross-examination by saying nothing more than "I'm sorry," before shedding tears.

We left court late on the Thursday before Christmas. But trial wasn’t over, yet.

There remains the task of filing post-trial "proposed findings of fact and conclusions of law." The proposed findings were requested by the court in the hope each side will offer an objective view of what happened at trial in order to aid the judge's decision.

Through it all, both sides worked hard. Courtroom door bruises aside, we went at it professionally, I hope. Eventually, one side of the dispute may claim victory.

Bill Rohn is a partner and trial lawyer with the law firm of Varnum LLP. His trial practice focuses on commercial, construction, and employment litigation.  He can be reached at werohn@varnumlaw.com

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