By Margaret Cronin Fisk, July 2001

Just in time: Mark Werbner was hired three weeks before trial, but managed to win his clients a stunning $454.5 million

By Margaret Cronin Fisk

Attorney: Mark S. Werbner, 46

Firm: Sayles, Lidji & Werbner of Dallas

Case: COC Services Ltd. v. CompUSA Inc., No. 00-8358-F (Dist. Ct., Dallas Co., Texas)

Winning Points:

Keep videotaped excerpts short, no longer than 12 minutes.

Don't overtry the case.

Use 'shadow juries' to test trial progress.

Keep the 'shadow juries' to five people.

For what would be the biggest win in his career, attorney Mark S. Wernber was hired just three weeks before the case was scheduled for trial. While, for most lawyers, such a late start would be an occasion for panic, Werbner considers it an advantage.

"I provide a new perspective on the case," he says.

People who live with the litigation for months or years, he believes, often over-try the case, spending hours examining key witnesses on the stand, for instance, when minutes may suffice.

"I'm able to concentrate on what the case looks like for trial," streamlining and honing the focus for presentation to the jury, he says. Although this approach may seem risky, it proved effective in this case alleging tortious interference, which Werbner tried in Texas this winter. By the end of trial, the Dallas jury wound up awarding his clients $454.5 million, including $364.5 million in punitive damages.

BIGGEST SO FAR

It was the largest plaintiffs' verdict he has won so far, but there have been other substantial wins, including a $24.5 million verdict against American Airlines in a personal injury action, a $23 million verdict against Texas Instruments in an environmental case and an $11 million verdict in an insurance fraud case last year. Werbner also represents defendants in civil and criminal actions. He has tried about 100 cases to jury verdict and won more than 90 percent of them.

In his most recent win, Werbner represented a small company, COC Services Ltd. The lawsuit had its origins in discussions in 1997 between two friends, the chief executive officer of COC, Lawrence McBride, and the president of CompUSA Inc., James Halpin, over a possible deal wherein COC would acquire the exclusive franchise rights for CompUSA in Mexico, says Werbner.

In January 1999, both parties signed letters of intent for a master franchise agreement, which gave COC the franchise rights and the ability to bring in a partner, with the proviso that COC maintain at least 20 percent of the resulting partnership. No formal franchise agreement has been signed.

COC approached Carlos Slim Helu, considered the richest man in Latin America, to be a partner, Werbner says. But, he charges, after Slim "got the financial information about CompUSA, Slim bought CompUSA and decided to cut us out." Halpin went along with the abandonment of COC, Werbner contends, because "he received a $21 million golden parachute agreement."

COC sued Slim, his companies, Halpin and CompUSA, charging breach of contract, tortious interference with contract and tortious interference with prospective contract.

UP TO SPEED

Werbner joined the COC team late, but, to get up to speed, he asked the team members to provide him only with what they considered the salient evidence: "I don't want to look at it unless somebody has already made the decision where the sizzling, hot material is."

He likes video depositions to be edited down to 12 minutes or less before he sees them. "I won't put on anything longer than 12 minutes. If it's longer, the jury won't remember the name of the person" deposed, he says. "And you'll bury whatever point was in there." This requires that he have complete trust in the rest of his trial team.

He then polished his themes. "This was about a friend stabbing a friend in the back." Before trial, he tested this theme and related points thoroughly through focus groups and mock trials.

During the trial, Werbner continued testing through the use of a shadow jury of five. The jury was debriefed nightly. They jurors do not communicate with each other, he notes.

"But we may send them off for deliberation before the end of trial. You don't want it to be too early. But you may want to find out how something is working." In addition, he says, "It helps my closing argument."

Werbner had Roger Cunningham, a top executive at COC, tell the story of what happened during the negotiations and how COC discovered it was no longer part of the deal. Then he brought on Halpin as an adverse witness.

"There's a lot of risk to that. If the witness is just neutral, it's a big mistake," he says. "You need for him to come off poorly." But before trial, Werbner had taken a short supplemental deposition of Halpin. He realized from the deposition, he says, that Halpin "had a propensity toward anger, nonresponsiveness and flippancy, and I hoped I could elicit this."

BREAKDOWN

While witnesses can change their demeanor from a deposition to their appearance at trial, Werbner says, Halpin "was a successful, high-powered CEO. It's hard to change that kind of style and presence."

Werbner confronted Halpin with the breakdown in communications between him and the COC executives, particularly McBride, after Slim entered the picture. Halpin agreed that he and McBride were friends. Halpin testified that "we had a great friendship up until the day he sued me." Then Werbner pounced. He pointed out the suit didn't happen until January 2000, almost two months after McBride had tracked Halpin to Mexico to find out what was happening. "Was he still your close friend in November?" Werbner asked.

"It was getting strained at that point," Halpin said.

Werbner pressed the point. "You wouldn't even talk to him when he came to Mexico in November begging for information about why he hadn't heard from them." The witness said McBride had not been begging. In Mexico, McBride had suggested they meet for a drink, or dinner, to talk about the deal. Halpin conceded that he declined because he was too tired after spending the day with Slim. Werbner then asked about the next day, when McBride came to the airport in Mexico City and asked Halpin to talk with him.

"And you turned your back on him, didn't you?"

"Absolutely not."

"You told me you were angry that he would even come to the airport because you felt like he was a little puppy dog following you around. Isn't that what you said, in your own words, yes or no?"

"Yes."

Both McBride's parents had died during the time the negotiations were failing. Werbner asked the witness if he was aware of the senior McBrides' deaths. He said he was. "And you didn't have the courtesy to give him five minutes of your time?" Werbner asked.

"Not in an airport," Halpin replied.

'SQUIRMING' WITNESS

The witness, Werbner says, "was squirming, uncomfortable." The exchange, he adds, went to the "emotional core" of the case, and fit in with the plaintiff's theme that McBride, and by extension, COC, had been betrayed.

On Feb. 8, a Dallas jury awarded COC $454.5 million, including punitive judgments of $175.5 million against Halpin, $67.5 million against Slim and $94.5 million against CompUSA.

After trial, the court set aside the verdicts against Halpin and CompUSA and reduced the total award to $121 million.

Both sides are appealing.

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