In the second Vioxx trial that W. Mark Lanier tried, he turned to a different approach in his closing arguments.
Lanier spun the case like four episodes of "Desperate Housewives," the popular prime time soap opera several jurors had indicated that they watched. Between each story, he paused for a "commercial break," playing a Vioxx advertisement for emphasis.
As a prop, he used a poster with the women of the television show, with pictures of Merck & Co. executives' faces superimposed over the characters' faces.
It worked.
Lanier represented the plaintiff on general liability issues, while Robert Gordon and Jerry Kristal of Weitz and Luxenberg represented the plaintiff on all case-specific issues at trial. Their client won a $13.5 million verdict against Merck in Atlantic City, N.J., McDarby v. Merck & Co., No. ATL-L-1296-05 (Atlantic Co., N.J., Super. Ct. 2006).
Lanier's first Vioxx win was a $253 million verdict in Texas in 2005, Ernst v. Merck & Co., No. 19961-BH02 (Brazoria Co., Texas, Dist. Ct.). Both cases are being appealed by Merck.
"If you tell stories, jurors will remember it better, and relate to it better," said Lanier.
The Atlantic City trial was Lanier's first jury trial outside of the Texas area. To prepare, Lanier used more pretrial focus groups than for any of his previous trials, and spent countless hours preparing.
"I walked the streets in Atlantic City," he said. "I went through stores, casinos, I struck up conversations with people and asked what made them tick."
As a young Texas trial lawyer, Lanier has enjoyed remarkable success. He founded The Lanier Law Firm in 1990, which recently opened a New York office. He has verdicts of $417 million and $118 million under his belt, in addition to the recent Vioxx wins.
He's earned a reputation for his high energy, Southern accent and theatrical flair in the courtroom.
"He is passionate. He's funny without being inappropriate, and the whole time he's trying a case it's as if he's just having a conversation," said Lisa Blue, a close friend of Lanier's who is also a psychologist, a jury consultant in the Vioxx cases, and of counsel at Baron & Budd in Dallas. "He talks to a witness as if he's talking to a friend at a cocktail party. It's a very relaxed and real style for him."
Lanier, a part-time Baptist preacher, scoffs at being deemed "theatrical."
"I had one case where the bad guys -- that's what I call the opposing side -- would stand up and say 'objection, your honor, argumentative and theatrical,' and the judge sustained it. ... But there's no such thing as a theatrical objection," Lanier said. "I like to think I'm high-energy and demonstrative."
The key to his success is his hard work, he said, and his creativity. For every trial, "I try to do one thing that will improve my trial skill set," said Lanier. Before the Ernst case, he worked on his PowerPoint presentation skills, and brought in additional lawyers to counsel him on trial tips.
Lanier is always looking for "nuggets of information," by filing advertisements in newspapers to attract witnesses or hiring private investigators to locate extra witnesses. In the Ernst trial, Lanier hired a private eye to find a coroner who had relocated to the United Arab Emirates.
Lanier scoured the auction Web site eBay for paraphernalia, buying a plastic heart that Merck had made in the 1950s to use as a prop in trial.
"His mantra in life is to always improve and kick it up a notch," Blue said. "He'll do whatever it takes -- focus groups, mock juries, elaborate questionnaires. He's all about being prepared.
"Jurors love the way he explains things to them so they can retain it," she added.
Merck lawyers declined to comment on Lanier. An opponent with more success against Lanier, Peter Bicks, the managing partner of Orrick, Herrington & Sutcliffe's New York office and a litigation defense attorney, characterizes Lanier as an attorney with "considerable charms."
"Mark is a great trial lawyer, a skilled examiner, and will entertain a jury," said Bicks. "A steady, even-keeled and passionate approach provides a nice counterbalance to Mark's animated, theatrical and preacherlike style."
Bicks handed Lanier one of the worst losses of his career in an asbestos case in 2004, Kelly-Moore Paint Co. Inc. v. Union Carbide Corp., No. 19785-BH02 (Brazoria Co., Texas, Dist. Ct.). In the six-week jury trial, Lanier's client Kelly-Moore sought nearly $6 billion.
"You know if you defeat Mark Lanier ... you have beaten one of the best trial lawyers," Bicks said.
Source: Law.com
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