Trying the Case

What if the government announces that if the client were to merge with a competitor, the government will sue? At that point, the company has two options: it can either call off the acquisition or move forward. If it chooses the latter, you would hopefully have done most of your preparation already. At this point, you should have already made an evaluation of the anticompetitive effects of the transaction, met with the Department of Justice at least once, and responded to one or more government requests for documents. It is likely you have already hired an economist /consultant and arranged for him to meet with the Federal Trade Commission or the Justice Department to make your arguments. Essentially, you should have already in a sense prepared for trial since you will have told the government what your positions are, learned the positions and arguments of the government, and each of you will have disclosed to the other the factual and economic evidence supporting your positions . At this point, you will need to prepare for trial as you would any other civil trial in federal court . You will finish your discovery, develop a trial schedule, get your experts and other witnesses ready, and prepare your opening statements. At that point, deciding the dispute is left up to the judge or jury.

The most eye-opening experience you can have is to take a case to trial, be convinced you should have won, and then have a jury come back with a verdict that is so out of line with anything in reality that it shocks your conscience. I doubt there are many trial lawyers who have not suffered something like that. Most people depend on and believe in the jury system, but the system can go haywire for reasons that do not make much sense. The first thing to do in such a situation is to counsel your client, who is upset to a great degree in part because you previously have told him that you thought you had a great defense in the case and the case was going in well. If you cannot get the judge to set aside the jury verdict, then you have to prepare for a verdict to be entered and start the appeal process. Although this will cost the client more money, it may be the best money spent in the case. For example, in the last 15 years in the Fifth Circuit, less than a handful of antitrust jury verdicts have been upheld.

While all circuits do not necessarily have that same defense-oriented record, most antitrust plaintiffs lawyers recognize that the chances of getting reversed on appeal are fairly high. One well-known and successful plaintiffs lawyer has been quoted as saying he would rather settle all his cases in the future rather than try them and get them appealed.