Overview
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Law360, New York (April 29, 2016, 10:38 AM ET) -- Michael Dockterman, a partner in Steptoe & Johnson LLP's Chicago office, has been principal trial counsel in state and federal courts in more than half the states in the United States. His litigation and trial experience involves commercial, governmental and white-collar criminal matters, and includes securities, antitrust, intellectual property, environmental, contract, fraud and product liability cases, as well as a variety of amateur sports disputes. Dockterman advises boards and board committees on matters of corporate governance and compliance, defends board actions in securities and derivative litigation and represents both corporate and individual interests in grand jury and other government investigations across the country.
Dockterman served as the lead trial lawyer for Toys “R” Us in its successful trial court and appellate litigation over the Toysrus.com website — a win that garnered him a place on Law360’s 2015 “Trial Aces” list. He also successfully defended the city of Chicago in an eight-week trial challenging the largest public works project in the country, construction of the People-Mover for O’Hare International Airport, and Northrop-Grumman in a three-month trial over the stealth bomber.
Q: What’s the most interesting trial you've worked on and why?
A: This is a hard question because I’ve been very lucky to work on some fascinating trials. Before the law changed to prohibit such things in the US, I had a series of hearings against the International Sports Federations and the United States Olympic Committee that ultimately led to a trial before the International Olympic Committee the day the Los Angeles Olympic Games were to begin. Walking into the Grand Ballroom of the Biltmore Hotel filled with 60 delegates acting as the tribunal, all miked up with headphones for simultaneous translation, with Peter Ueberroth as my opponent, was about as otherwordly a trial as can happen in America. The issue was a new test for performance-enhancing drugs, and explaining how a gas chromatograph/mass spectrometer was thrown off by giving the athlete beer to drink to help him give urine samples to be analyzed for liver enzymes was an unimaginable professional challenge.
Equally challenging was being asked to step in to try a two-month long case three days before the evidence started over what was then the largest public works project in the country. The central question was whether one of two competing bidders was using “off the shelf” technology. The existing trial team knew the technology cold but the real issue was the political pressure being exerted by both sides. There were cameramen and reporters outside the courtroom and each day’s testimony was on the nightly news (which incorrectly reported one night that I had been indicted). Several politicians, some aligned with one side and some with the other, showed up the first day of trial to stare down the judge, so he took everyone into the next courtroom to disclose all of their connections to him. That didn’t stop the politicians from continuing to sit in the back of the courtroom. Within days, all budgets went out the window as a parade of elected officials and engineers took the stand. We flew an exhibit in overnight from Lyon, France, to use with a witness for five minutes, but he was so taken aback by the exhibit that he left the stand and refused to sit through a redirect examination. Those things don’t happen in real life.
But I must say that trying the case to break up the Toys “R” Us — Amazon.com partnership was probably the most interesting case a lawyer could have in his career. Nearly four months of trial, with new evidence being pulled from the Internet every day to show how Amazon lacked control over its website as required by its contract, was an adventure every day. The issue was exclusivity, and we created a magnetic board as the foundation for an exhibit which we built as the trial unfolded, with each witness contributing a new piece of the exhibit through his or her testimony. Ultimately, Jeff Bezos took the stand and I got to take him to the Amazon site. After two days on the stand, he declined to do any more web searches, and we knew that we had the better side of the case. For closing, I brought Toys “R” Us’ mascot, Geoffrey the Giraffe, into the courtroom and put him at the end of a row containing each witness we had called, in the order we had called them. I told the judge that Geoffrey was there to ask the court to help him find his home on the World Wide Web because Amazon had taken it from him. The line found its way into the court’s opinion as if Geoffrey had testified. How often do you get to put real stuffed animals on the stand?
Q: What’s the most unexpected or amusing thing you've experienced while working on a trial?
A: One night during the Amazon case, we found that marketplace sellers were putting adult devices on the toys tab for sale in blatant violation of the parties’ contract. We had to bring this to the judge’s attention but those are not words you use in open court. I started the morning trying to describe the problem in euphemistic terms but my local counsel slipped me a note that the judge hadn’t looked at the papers we’d just filed and wasn’t getting it. Now, the judge had made up a toy called “Go Bunny Rabbit Go” to use during the trial instead of brand names, and these adult novelties were called pocket rabbits. So I told her that they were selling bunny rabbit dildos as bath toys under the toys tab. You never saw such mixed expressions of horror, hilarity and curiosity running across every face in the courtroom. Then we called a witness out of order and made an offer of proof to have the witness get online and order the vibrators from the toys tab to be delivered to the courtroom. They may still be in the evidence room.
Q: What does your trial prep routine consist of?
A: I outline the closing, pick my themes, list the evidence I need to get in through documents and witnesses in order to make the arguments I want to make, and start making piles for each witness. Exhibits, deposition pages, whatever I need. I put them in the order I want, witness by witness, and then start culling. There has to be some overlap, because the testimony should link together like the old children’s game of a Barrel of Monkeys so I can build from witness to witness to tell the story. For the witnesses on the other side, I also layer in whatever I can to help erode their credibility, but after all of that is assembled I start throwing out the weak stuff. And, two weeks before a trial starts, I stop drinking any alcohol so that when the client wants to have a drink after a hard day, I can politely decline getting started down the slippery slope. But the day the verdict comes in, I can fall off the wagon and hope it is in joy not in sorrow.
Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?
A: Stick to your theme. If it doesn’t fit with the theme, don’t do it.
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
A: When I was a very young lawyer, I was lucky to be in the courtroom with some truly wonderful trial lawyers. I was the junior person in the room for two months while Vince Fuller, the lawyer who defended Mike Tyson, went into the lists against the DOJ. Later, I had a trial against Jim Montgomery, who had tried the Black Panther case. They were walking clinics. But shortly after he left the US Attorney’s Office, I had the privilege of trying a case with Dan Webb as my co-defendant. Dan is that rare trial lawyer who is even better than his stellar reputation. In that case with Dan, I had to ask most of the questions, but thank heavens he was there to ask the right questions. Later, I watched Dan try a case against Max Wildman, who was the best trial lawyer you ever saw, and the contest between them was just unbelievable. They did things with witnesses that were magical. Court watchers came from all over to see them work. Dan has an absolutely unerring instinct for asking a question that no one else would dare to ask, a question that would backfire if anyone else tried it, and elicit an answer that works perfectly for his case. Go watch him try a case.
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