November 21, 2016

5 Litigation Lessons From Joe Jamail’s Trial Strategy In Pennzoil v. Texaco

By David Lat

With its final resolution almost 30 years in the past, it’s hard for observers today to understand the epic nature of Pennzoil v. Texaco. The case is famous for generating what was at the time the largest jury verdict in history, for $10.53 billion (or $11.1 billion with interest, after it was affirmed on appeal) . . . .

Last Wednesday, I had the pleasure of attending “Joe Jamail: The King of Torts,” an event co-sponsored by the Berg & Androphy law firm and Thomson Reuters. Veteran trial lawyer David Berg, name partner at Berg & Androphy and a close friend of Joe Jamail, offered a fascinating, in-depth look at Jamail’s trial strategy in Pennzoil v. Texaco.

After welcoming remarks from Joe Borstein of Thomson Reuters (and our own column) and Jenny Kim, the former Kasowitz Benson partner who launched Berg & Androphy’s New York office, former CBS general counsel Louis Briskman took the stage to introduce David Berg. (If Briskman’s name rings a bell, that might be because he was, prior to his retirement, one of the nation’s best-paid general counsel, taking home almost $25 million in a single year).

“I view David as the St. Jude for bet-the-company cases,” Lou Briskman said. “And he won a number for CBS, thank God.”

Briskman offered some advice to in-house lawyers selecting outside counsel to try cases. Ask potential counsel this simple question: how many jury cases have you taken to verdict? You’d be surprised by some of the responses you’ll get, even from litigators who have been practicing for years. David Berg, in contrast, has taken dozens of cases to trial over his decades in practice.

David Berg started his talk by sharing some personal reflections about Joe Jamail, his longtime friend and occasional courtroom adversary. “Joe had an incredible memory,” Berg said. “I was talking with him about a case we had from 1973. I couldn’t remember the name of my client. He remembered his client, my client, and how much he paid me to go away.”

*      *      *

The Pennzoil/Texaco trial lasted for four months. The jury deliberated for just a day and a half before awarding Pennzoil $7.53 billion in actual damages and $3 billion in punitive damages — at the time, the largest jury verdict in history, which would later get upheld on appeal.

So Joe Jamail was spectacularly successful in his trial of the case. What can we learn from how he handled it? David Berg, after reading and analyzing the more than 25,000 pages of trial transcript, gave the following pieces of advice.

(For more, keep an eye out for the forthcoming new edition of The Trial Lawyer: What It Takes to Win — one of David Berg’s two books, the other being his critically acclaimed memoir, Run, Brother, Run.) . . . .

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