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WINNING

Monday, June 2, 2003


BARRY R. OSTRAGER
Focus on the 'jugular' issues

By Emily Heller
SPECIAL TO THE NATIONAL LAW JOURNAL

ATTORNEY: Barry R. Ostrager
FIRM: Simpson Thacher & Bartlett, New York
CASE: The Chase Manhattan Bank v. Motorola, No. 00CIV4838AKH (S.D.N.Y.)

TRIAL TIPS
  • Focus on the six or eight most important facts.
  • Reinforce the case with graphics.
  • Score points by using adverse witnesses to build your case.
  • Barry R. Ostrager has not lost a trial in 20 years.

    Of course, any litigator who's handled 50 trials in three decades is going to know a thing or two about case selection. But it's not like the co-head and senior partner in the litigation department of New York's Simpson Thacher & Bartlett has been chalking up wins with gimme cases.

    To the contrary, Ostrager seems to favor the messy and complex fights. Among them:

    He represented Andersen Consulting in an arbitration over its separation from Andersen Worldwide, which unsuccessfully claimed that the consulting unit owed $14.5 billion. The arbitration panel agreed with Andersen Consulting's argument that Andersen Worldwide breached their agreement. The consulting unit split off without financial penalty.

    Ostrager was lead defense trial counsel for a group of insurers against Shell Oil in an environmental insurance coverage case. With $2.5 billion at stake in the 16-month trial, a jury agreed with the defense and denied coverage.

    Ostrager was also trial counsel for Manufacturers Hanover Trust Co. in a successful bankruptcy civil action (and settlement) of a $400 million fraud claim against Equitable Insurance, stemming from a soured real estate redevelopment.

    His latest big win was a $370 million bench verdict in New York federal court for J.P. Morgan Chase & Co. in a breach-of-guarantee case involving Iridium, a failed satellite phone company. The defendant was Motorola Inc., which, the judge ruled, had improperly withdrawn a $300 million guarantee of the bank's financing of Iridium.

    More to come

    All those wins would seem to make Ostrager the go-to litigator when big money—particularly insurance money— is at stake.

    Indeed, Ostrager represents the World Trade Center's lead property insurer and is mired in the highly contentious coverage litigation. Opposing counsel is fellow legal heavyweight Herbert Wachtell, counsel to the operator of the buildings.

    Wachtell argues that the destruction of the buildings constituted two occurrences under the coverage and that, therefore, the payout should be double the $3.55 billion policy limit. So far, Ostrager is winning, having overcome summary judgment.

    Ostrager's record will be on the line this fall when the case goes to trial.

    "I don't think the World Trade Center case will ever settle," said Ostrager. "I'm quite confident it will go to trial. It's a trial I'm looking forward to."

    Ostrager's Iridium trial victory in January 2002 illustrates some of his favorite ways to win. In the movie/musical Chicago, the lawyer tells his client—a woman accused of murder—that juries can understand only one message at a time, Ostrager said. Together, they devise a trial theme that would explain what happened and resonate with the jury. Their story? "They both reached for the gun."

    "There's a lot of truth to that in trial practice," said Ostrager. "You don't want to make it more complicated than it has to be."

    Whether you are trying a case before a judge or a jury, "you are trying to persuade somebody that your version of what occurred is the more logical and reasonable explanation of the case than the version that the opponent is sponsoring," he explained.

    Therefore, simplify the case by focusing on the six or eight most compelling facts, he said, recalling that a mentor once described the strategy as concentrating on "jugular" not "capillary" issues. "That is something that distinguishes effective trial lawyers from less successful trial lawyers."

    Ostrager distilled the Iridium story to a few sentences. Though Iridium was falling far short of financial goals, its chief financial officer issued a document certifying that performance was on target. That certificate allowed Motorola to be released from its guarantee of Iridium's bank financing. That release left lenders high and dry when Iridium went bankrupt. (A new company bought Iridium's assets and operates as Iridium Satellite LLC. The company Web site says it is not associated with the predecessor firm and is not involved in the Motorola suit.)

    The core issue at trial was whether Iridium's issuing the certificate releasing Motorola's guarantee was accurate and prepared in good faith, said Ostrager. Chase argued successfully that neither was true. According to a transcript, Iridium's accrued revenue about the time of the certificate was less than $1 million, but the minimum amount that would have substantiated the release of the guarantee was $25 million.

    After establishing the essence of the case, reinforce it with each witness and in trial charts and graphics, said Ostrager.

    In the Iridium trial, Ostrager used a large calendar with key dates, including the critical date of Feb. 10, 1999, when the Iridium chief financial officer issued the release certificate.

    The calendar noted the dates that the Iridium CEO participated in meetings where executives discussed the company's failings, Ostrager said.

    It also included the CEO's nine-day ski trip to Colorado just before the certificate was issued, using a little picture of snow-capped mountains on those dates. Ostrager wanted to emphasize his point that during the ski trip "nothing had happened that would have caused him to change his opinion about Iridium's performance." In his testimony—by deposition—the CEO agreed with Ostrager.

    "That was sort of like game, set, match in terms of demonstrating the certificate was improperly issued," said Ostrager.

    Using adverse witnesses to establish facts supporting your case is one of Ostrager's favorite techniques. It improves your chance of success, he said. Judges and juries always give extra points for proving your point using the other side's witnesses, he said.

    In the Iridium case, all but one of Ostrager's witnesses were adverse. "Essentially, I cross-examined Motorola and Iridium executives about the facts and circumstances relating to the financial condition of Iridium, all for the purpose of demonstrating to the court that the certificate couldn't possibly have been issued in good faith and that there were improper motives that gave rise to the decision to issue the certificate."

    Ostrager used this same technique in the Andersen Consulting arbitration. He did it again more recently in a $5 billion arbitration for Travelers Insurance involving billions of dollars in asbestos claims.

    "I didn't call any witnesses on behalf of my client," said Ostrager, noting he is awaiting a decision in the arbitration.

    He also credits his colleagues in the Iridium case, particularly partners Mary Kay Vyskocil and David J. Woll.

    Though they may be from decades ago, Ostrager hasn't forgotten the lessons that come from losing.

    "I have certainly lost trials. I lost a trial in San Antonio, Texas, and I learned that it's a good idea not to be a New York lawyer in San Antonio," Ostrager said.


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