David vs. Goliath: An ATL Conversation With Collin Cox

This is the first installment of a series of interviews with accomplished attorneys concerning "David vs. Goliath" scenarios and the strategies and innovations lawyers use -- including litigation finance -- to help level the playing field.

Ed. note: This is the first installment of a series of interviews with accomplished attorneys concerning “David vs. Goliath” scenarios and the strategies and innovations lawyers use — including litigation finance — to help level the playing field. This series is sponsored by Lake Whillans Litigation Finance.

Tell us a bit about your background and practice.

I am a trial partner at Yetter Coleman LLP, a Houston litigation boutique that handles high-stakes business and technology litigation, split 50/50 for plaintiffs and defendants. I am lead counsel in complex disputes in the energy, financial services, and software industries around the country. I have been a “Texas Super Lawyer” in business litigation for several years and was named the Outstanding Young Lawyer in Houston three years ago. In 2015, my firm was named (again) to the National Law Journal’s “Litigation Boutique Hot List.” I graduated from Duke Law School (as Editor-in-Chief of the Duke Law Journal), the University of Cambridge, and Baylor University, and then clerked for the Hon. Anthony J. Scirica, Chief Judge of the U.S. Court of Appeals for the Third Circuit.

What are your views on trends in litigation which are “leveling the playing field” through technology, funding alternatives, other innovations?

This is an exciting time to be a trial lawyer. The entire landscape for legal services, particularly litigation, is changing. Technology makes it easier to communicate with clients, but increases juror expectations in terms of how we present evidence at trial. As the world gets more specialized, there is a higher premium for attorneys who can make simple what is in fact complex. And, more than ever, clients are considering different ways of funding. At my firm, we love to partner with our clients – whether plaintiff or defendant – in fee deals that benefit both sides when we succeed. As those arrangements become more common in business litigation, we can serve new clients who focus on results and want to partner side-by-side with us. Firms that are nimble and responsive have all sorts of new opportunities.

The changes are perhaps most profound in the area of litigation finance. For decades, plaintiffs with strong cases often faced the overwhelming challenge of high litigation costs. Year after year brought more expert reports to fund, more depositions to take, and more pleadings to write, seemingly with no end in sight. The market has reacted to help fill the void. Plaintiffs who once might have had to abandon a strong case because of expense or exhaustion now can get the financing to cross the goal line. Weak cases still fail. But litigation finance empowers a deserving plaintiff to have the best lawyers present its story to a jury.

Can you share with us account of a “David & Goliath” case, where a party was able to leverage new approaches to succeed against a seemingly better resourced opponent?

In 2013, we met the principals of Lake Whillans, one of the leaders in litigation finance. They introduced us to Business Logic Corp., a small but innovative software company in Chicago. For years, BLC had worked well with one of the largest companies in Chicago to roll out an online advice solution for employer retirement programs. Then, BLC believed, its former partner stole its trade secrets and used them to implement “new” programs based on BLC’s hard work. Defended by a blue-chip law firm, Morningstar, after years of litigation, had worn down BLC to the point of abandoning its claims, declaring bankruptcy, or finding outside funding.

We stepped in as co-counsel 11 months before trial. We moved the case from the Chancery Division to the Law Division, to get a jury trial. We focused on how to try the suit to twelve normal jurors who knew nothing about computer software. Instead of using a raft of complicated algorithms, we whittled down to the five key trade secrets – the “core plus 4” – that we would hammer at trial. We took a half-dozen critical depositions to develop our key themes, using as many demonstratives as we could. And then we convinced the judge, who acted as a mediator in the midst of deciding pretrial motions, that we would prevail. The day before opening statements, we got a $61 million cash offer, representing 95% of our claimed damages, and the case settled. It is the largest reported trade-secret settlement in Illinois history.

Every case is unique – new witnesses, new challenges, new judges and juries. This makes my job fun. But the lessons from the BLC case apply broadly. Strong litigation financing firms like Lake Whillans identify plaintiffs who deserve the chance, but cannot afford the cost, of presenting their cases at trial. As before, cases without merit will fall of their own weight, whether on the papers or at trial. But where you have a deserving plaintiff, funding can level the playing field in a way that creates advantages for everyone – except for the defendant who is winning by prolonging the game and ratcheting up costs.