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LOCAL ATTORNEYS MAKE NATIONAL LIST - TWICE

Mar 27, 2001

From the Mobile Register

By EDDIE CURRAN

Staff Reporter

Two jury verdicts won last year by the Mobile plaintiffs firm Cunningham, Bounds, Yance, Crowder & Brown ranked among the largest 40 trial awards in 2000, according to an annual survey conducted by The National Law Journal.

The Mobile firm's biggest-ever verdict - a Dec. 19 jury award for $3.5 billion won for the state of Alabama against Exxon Corp. - was the third-largest jury award of the year, the national survey showed. A second verdict, for $50 million in a wrongful death made the list.

The Exxon case involved the claim in 1993 the company began cheating the state out of a portion of the royalties it was contractually obligated to pay Alabama for natural gas extracted from the bottom of Mobile Bay. A Montgomery County jury awarded the state $87.7 million in compensatory damages, and a whopping $3.42 billion in punitive damages.

Exxon contended it had done nothing wrong, and blasted the verdict as excessive and based on a faulty interpretation of law and facts. The company has pledged to appeal.

Firm partner Robert "Bobo" Cunningham, who tried the case with partners John Crowder and Richard Dorman, called the much-publicized win a team effort by many of his firm's lawyers and employees. Cunningham said he's been told that the $3.5 billion award is among the 10 largest jury awards in U.S. history.

"We didn't just walk in and pick up the Exxon case and get a $3.5 billion verdict," Cunningham said. "That was the culmination of an awful lot of experience by a number of different lawyers, paralegals and investigators at this law firm. It might seem like a one-time affair, but it's kind of like a pinnacle of a lot of years of experience by a number of lawyers."

The Exxon lawsuit, filed in 1999, is one of several similar cases brought by the firm against petroleum companies on behalf of the state. Others are pending in Mobile County Circuit Court.

"In the oil and gas cases, our expenses are up to $3 million to $3.5 million," Cunningham said.

In the wake of the Exxon verdict, the firm was criticized over the potential size of its fee - $490 million, or 14 percent of the $3.5 billion. In this lawsuit, as with most plaintiffs' cases, the Cunningham, Bounds firm was hired on a contingency fee, meaning the firm is to be paid a percentage of the money it wins for its client, and won't be paid if it loses.

To date, the firm hasn't been paid the first dollar for its work on the Exxon case or the wrongful death case against Mack Trucks, Cunningham said Monday.

Montgomery Circuit Judge Tracy McCooey, who presided over the trial, has scheduled a May hearing to consider a request by Exxon - now called ExxonMobil Corp. - that she reduce the $3.5 billion award. The state has asked that the jury's judgment be upheld in its entirety.

Regardless of how McCooey rules, an appeal to the Alabama Supreme Court is all but inevitable, Cunningham said.

The Mack Trucks case was tried in Clarke County by Cunningham and Gaines C. McCorquodale of the Jackson, Ala., firm, McCorquodale & McCorquodale. The lawsuit was brought by the family of Tonnie Ray Witherspoon, a truck driver who burned to death in 1995 after his truck, carrying a load of logs, overturned.

The plaintiffs contended that a $2 electrical cut-off switch could have prevented the fire, and that Mack Trucks chose not to install the switch on its trucks.

The company contended that the lack of a switch was not the cause of the fire, and argued that there is no requirement that such switches be included on trucks.

The jury awarded Witherspoon's heirs $50 million. Judge Harold Crow later reduced the verdict to $25 million. Mack Trucks has appealed the case to the Alabama Supreme Court.

In all likelihood, the Exxon and Mack Trucks verdicts will be reduced, perhaps significantly.

The National Law Journal review included some large verdicts in 2000 that have already been sharply reduced, including an $83.5 million verdict that was cut to $1.8 million, and an $80.8 million verdict chopped down to $4.4 million.

The largest jury award of 2000 - which also happens to be the richest trial judgment in U.S. history - was rendered in July by a Miami jury that spent two years hearing evidence against the tobacco industry. The Engle class action, filed in 1994 on behalf of about 500,000 Florida smokers, resulted in a mammoth $145 billion judgment. The appeals process could take years, and given the success of tobacco companies in similar cases, would well result in the $145 billion award being reduced significantly or set aside altogether.

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