Can't Win 'Em All

A trial, a jury, and a lesson that still stings 30 years later.

It was July—hot and humid—and the courtroom air conditioning was on full blast. I had never been in Detroit at this time of year, so I assumed this was normal. What was going on inside the courtroom was a far cry from normal. The attorney for Men’s Wearhouse (MW) had just finished questioning a witness for the other side in a case that had dragged on for several years. He turned from the stand and slowly walked over to the table where George and I sat. He leaned down and quietly said to us,

“Does anyone have any good ideas?”

There are all sorts of clues as to how a trial is going when you’re in the middle of it. If it’s a jury trial, you can look at the jurors. If it’s not, you can tell by the questions the judge might ask. Or you can trust your gut. When your own attorney asks—in the middle of the trial—if anyone has any good ideas, it’s a good sign that things are not going well. Your gut could be barely paying attention and still figure that out.

MW was on the verge of losing the most preposterous lawsuit I had witnessed in my 23 years at the company. I have no idea how George and I answered our attorney’s question, because when you see your life pass before your eyes, you’re more focused on that, I suppose. Soon after, the witness was dismissed, and our attorney told the judge that MW had rested.

Summations were to follow, but whatever. We already knew we were toast. Burnt. The case went to the jury, and within hours, they found in favor of the other side. Damages were the next phase, but at this point, the judge mercifully dismissed the jury for the weekend, then turned to both lawyers and said, “Settle this, gentlemen, before this jury does.” That was code for “MW, get your checkbook out and write a large check. If the jury decides, it’s going to cost you many millions.”

We settled, and it cost millions—but not many millions.

How did this happen?

We owned the name “Men’s Wearhouse,” which we registered with the Patent and Trademark Office. We owned the rights, provided the name was used in the sale of men’s apparel.

By the mid-90s and after going public, we began aggressively opening stores–about 50 per year. As a public company, we informed our shareholders and the public which cities we planned to open in over the next year. One of those cities was Detroit.

About nine months before opening our first store, we got a call from a Bear-Stearns analyst who knew us, congratulating us on our first Detroit store—which we hadn’t yet opened. What Detroit had was a store whose name had been recently changed from “The Warehouse” to “The Men’s Wearhouse.” It might have been called “Clothing Warehouse” or “Suit Warehouse” at some point, too.

Thus, the lawsuit. We alleged that we owned the rights to the name “Men’s Wearhouse.” They said they had the rights to it because………………..well, 30 years later, I still don’t know.

First, we politely asked them to stop using our name, and they politely told us to pound sand. We filed for a temporary restraining order (TRO) to require them to stop using our name until we could prove to the court that we were the rightful owners. The TRO was granted, and we opened stores in Detroit while the lawsuits played out in the background.

I won’t bore you with years of litigation and multiple depositions in both Detroit and San Francisco; instead, I'll fast-forward to the trial itself. Up until that point, I was confident that we had the better case. It wasn’t that complicated. We had been using our name continuously for 23 years.

We were represented by a local Detroit firm and by our corporate attorneys in San Francisco. I ran point for MW, partly because the suit was branding-related, and partly because George had no tolerance for this kind of drivel.

My main contact at the Detroit firm was a terrific young associate, Rick, whose knowledge of the lawsuit and research capabilities impressed me. At the time, I didn’t know he had little trial experience. Rick’s boss, Owen, a senior partner, was also involved and let us know he’d be the lead at trial.

The only contact I had with the trial attorney on the other side (I’ll call him Jerry) was at a San Francisco deposition where he eviscerated our head of marketing for no particular reason. She was there to confirm that in her five years at the company, we had always used the name “Men’s Wearhouse.” The attorney’s overly aggressive questioning is something I, in retrospect, should have paid more attention to.

Very early in the trial, as Owen was questioning a witness from the other side, he began to stumble, first in his words and then physically. To this day, I don’t know what happened to him. Possibly a minor stroke? We had to escort Owen out of the courthouse, and the judge adjourned the trial for the day.

Rick, the great researcher, was totally unprepared to speak for us at trial. Not only did he have little courtroom experience, but his general demeanor was quiet and reserved. A nice human trait, but not appropriate for a jury trial. Our San Francisco attorney, while experienced in the courtroom, hadn’t prepared to speak on behalf of MW at trial. Why should he have? What could go wrong?

Meanwhile, Jerry painted MW as a big bad corporate giant, out to crush this poor local man, who was just trying to eke out a living selling clothing in his hometown. George’s persona as the TV spokesperson was used against him by Jerry, who also twisted what was a dispute over the name of a store into what looked like an MW vendetta against this man and his family—family that had been stalwarts of the community for generations. The owner’s wife and children were in the courtroom, adding to the woe-is-me-ism.

Had the jury decided on the damages to award, the amount would have been far greater than the amount we settled on, after a frantic weekend of negotiations between yet another MW-hired law firm and the same attorney for the other side.

What did I learn?

Sheesh.

• There’s no such thing as a “sure thing.”

• Just like the Boy Scouts, “be prepared.” For anything. And have great backup.

• Pay attention. I don’t know what I would have done differently after I noticed Jerry’s aggressive style at the deposition in San Francisco, which was over a year before the trial. But I should at least have noted it and discussed it with our counsel.

I learned something from Jerry. After we signed the papers, he turned to George and me and said:

“Here’s a lesson for you. If you ever get into a lawsuit again, check out the attorneys representing the other side. See if they have any prior relationship with your firm. Want to know why? Because I did. I used to work for Owen. He fired me. And the day he fired me, I swore that I’d get him back. I just did.”

With that, he closed his briefcase and left the room.

TL;DR: We had the facts, the history, and the trademark. What we didn’t have was a backup plan when things went sideways.

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