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The National Law Journal’s Winning Litigators: High Stakes, Significant Victories

The National Law Journal

The lawyers in our 2016 special report all have something in common — they score big wins in court. But how do these battle-tested litigators make their clients happy? As they detail, it's as much about the process as it is the outcome. They have learned that they must trust their own styles of trial practice, be credible, know the documents, and connect with and respect the jury. In cases ranging from products liability to patent law, they've mastered their craft. These are the stories of our winning litigators.

The most important decision Keker & Van Nest's Robert Van Nest made in defending Google Inc. in its copyright rematch with Silicon Valley rival Oracle Corp. was to cede ground.

Before the May 2016 trial in the U.S. District Court for the Northern District of California, Van Nest convinced Google to stipulate that it infringed copyrighted elements of Oracle's Java computer code to build the hugely profitable Android mobile operating system.

That left Google with one defense: That its use of elements of the Java programming language to build its system was a fair use under federal copyright law.

Though risky, the move allowed Google to put its case on first since fair use is an affirmative defense.

"The advantage of going first and simplifying the issues was important enough to take a risk," Van Nest said.

The risk was substantial. While the jury in the first Oracle v. Google trial in 2012 considered just one early version of Android, the second trial encompassed more than half-dozen additional versions. With the mobile market exploding in size between ­trials, Google's exposure went from less than $100 million to almost $9 billion.

"There's nothing like a $9 billion damage demand to focus you," Van Nest said.

With only 15 hours to put on Google's fair-use case, Van Nest and his team trimmed six planned witnesses from their list to focus on their first three, a group which included Eric Schmidt, the chairman of Google's parent company and Andy Rubin, the founder of Android.

Van Nest's strategic moves proved pivotal. After two weeks of trial, a San Francisco jury sided with Google on fair use, handing the company a huge victory.


• “Putting your best evidence up front is important. Dedicating as much time as possible to your key witnesses and cutting out witnesses that are less important is a better approach in a short jury trial. It’s important to get focus on your key people.”

• “In a trial that’s technical, having different personalities is a big plus. I think in a complicated trial or a long trial having a diverse group and more than one or two lawyers is a big plus.”

• Go first when you have the opportunity. “Get your story out there and let the other side try to rebut it.”  —Robert Van Nest