It was Monday, February 9, 2004 – the evening before closing argument. The jury would get the case tomorrow. I was in my hotel room worrying about the result. We had put on a strong case with four weeks of evidence showing that Tyson had used captive supplies to push cattle prices lower. But would the jury see it that way? Would they find that we missed something?
We had claimed the right side of this Alabama courtroom throughout the trial. It was nearest the jury. Tyson’s attorneys had claimed the left side. They could see the jury more directly.
The jury. Seven women and five men. Three were African-American, nine were white. They were soon to hold the future of the cattle industry in their hands. When they were selected, many of them were not pleased with the prospect of having several weeks taken away from their jobs, their families, and their leisure time. But they had intently listened to the witnesses and the video taped depositions. They had closely examined the exhibits displayed on three computer monitors in front of the jury box. They were taking their job seriously.
I walked down the hall of the hotel to the makeshift office where David Domina, plaintiff’s counsel from Omaha, was preparing the closing argument. David, his wife Carol, and Kim Weber from his staff had transformed one room in this hotel outside Montgomery, Alabama into the War Room. The attorneys, the plaintiffs, their families and supportive cattlemen had taken over much of the hotel. It was like living in a compound. We lived to the same rhythm. We got up, we ate together in the dining hall, we went to court, we came back, we reviewed the day, we ate, we slept. Day after day.
What would the jury do? How long would they deliberate? Tyson’s attorneys had tried to convince them that there were legitimate reasons for captive supplies. Those reasons sounded logical in theory, but their evidence was surprisingly weak. After eight years of preparation, hiring expensive economists, and funding many studies, was this all they had? Did the jury see it the same way I did?
David Domina had just completed a re-draft of his closing argument before I walked into the room. Each side had 90 minutes to argue tomorrow morning. David would present for 70 minutes, then attorney Tom Green would speak for Tyson, then attorney Joe Whatley from Birmingham would rebut for the cattlemen for 20 minutes. Chris Abbot, Bob Rothwell, Mike Callicrate, and Pat Goggins, four of the plaintiffs named in the case, were in the room and liked what they saw. They made some suggestions. They left. I made some suggestions.
Johnny Smith from South Dakota could not make the closing arguments. He had a livestock auction market to run. Henry Lee Pickett from Alabama was home. He would come in the morning.
Tuesday morning came. We got up, we ate, we went to court. The right side of the court room filled with cattlemen and their families. The federal marshals supervised everybody passing through the metal detectors at the courthouse entrance. They called it “the cowboy hat trial.” The left side of the courtroom included Tyson’s lawyers and some cowboy overflow from the right side. This was the day.
Judge Lyle E. Strom opened court. He looked to David Domina and said “proceed.” David stood in front of the jury speaking in quiet tones that the rest of us strained to hear. He said “This is America’s Cattlemen’s Trial. You can choose whether the cattle industry looks like this…” – he motioned to the right of the courtroom filled with cowboys and their families – “or whether it looks like this…” – he motioned to the left where Tyson’s attorneys sat with a barely perceptible flinch.
He explained how Tyson used captive supplies to accumulate inventory. He recounted how Bruce Bass, Tyson’s head cattle buyer, admitted that he set the price lower when his cattle inventory was high. He said that the Packers & Stockyards Act was like a fence. The packers were to stay on their side, the cattlemen were to stay on the other side. Good fences make good neighbors. But the packers had jumped the fence, controlling not only cattle demand, but cattle supply. Supply and demand had broken down. “The fence needs mending.” He asked the jury to fix it.
Tyson’s Tom Green got up to speak. Green was listed as one of America’s top ten litigators by the National Law Journal. His strategy was first to attack the six plaintiff class representatives. He demeaned one after the other – Chris Abbot, Bob Rothwell, Mike Callicrate, Pat Goggins, Henry Lee Pickett, Johnny Smith. They were radicals – out of the mainstream. Lee Pickett’s young son sat in the room, startled and sad for his father.
Then Green attacked the plaintiff’s experts, Robert Taylor of Auburn and Catherine Durham of Oregon State. Green further explained why Tyson had many legitimate business reasons for captive supply. He told the jury they should find for Tyson because of these reasons. He sat down.
Judge Strom nodded to the plaintiffs to again proceed. Joe Whatley got up. He told the jury why Tyson’s reasons were not legitimate. Those reasons are not legitimate if they are contrived, he said. They are not legitimate if they are pretext… or not proven… or not quantified. He then explained how the jury could calculate the amount of money that Tyson had taken from America’s cattlemen, their families, and their communities. Joe asked them to find for the plaintiffs so that Tyson would give that money back.
The judge read his instructions to the jury. The instructions favored, in our view, Tyson. We had argued strenuously against some of those instructions the day before when the jury was out. But we had to live with them. If the jury ruled for us, Tyson would have fewer arguments against the verdict because the instructions favored them. Judge Strom had given the case to the jury. Court adjourned.
12 ordinary people. After all my meetings in the countryside, presentations before Congressional committees, Senate votes, House hearings, USDA criticisms, it all came down to 12 people whom I had never met. Whom Tyson’s attorneys, lobbyists, public relations personnel, and executives had never met. Never had the playing field been so level.
We went to lunch – the attorneys, the plaintiff class representatives, their families, the cattlemen observers, and me. I wasn’t hungry. We talked together about the weather, about the markets, about our families left at home. We speculated about what the jury was thinking – despite the futility of that discussion.
By Wednesday morning many of the cattlemen went home. The day came and went. Thursday came. The jury had a question, submitted in writing to Judge Strom. There was a brief bustle as the attorneys from both sides read the question, debated the answer, and Judge Strom wrote the answer to be taken by the marshal back to the jury room. Some of us played cards. Lee Pickett’s son was so upset by Green’s remarks about his dad, that he felt too ill to go to school for three days.
On Friday, more of us went home, including me. David stayed with his wife Carol and Kim Weber. There was another jury question. The question seemed to show the jury was favoring us. Tyson’s attorneys appeared worried. I called to get the story. We were hopeful even as we were afraid to hope.
Monday, court holiday.
Tuesday morning, February 17, 2004. We thought this could be the day, but how could we know? The case had started in the last century – 1996. Is this the day? The phone rang in my office at 12:10 pm Eastern Standard Time. It was David Domina. The jury had come back. All 12 jurors had unanimously agreed with us on all questions. They found that Tyson damaged the cash market by an amount exceeding $1.28 billion. Henry Lee Pickett was crying. To him, the verdict was not only for cattlemen, but for his son.
I said “Thank you David.” I hung up the phone. We won.