How a lawyer's strategy paid off in Toyota liability trial

Toyota's appeal of the $10.9 million judgment in the Koua Fong Lee case returns attention to a clever strategy by his attorney Bob Hilliard.

In his closing argument, Hilliard detailed his theory on how a defect in Toyota's accelerator caused the 2006 crash. Toyota's attorneys had not grasped this was the linchpin of Lee's case and were caught off guard.

Did Hilliard cook that theory up the night before? U.S. District Judge Ann Montgomery openly wondered during a post-trial hearing last month.

At the trial Hilliard said Lee's Toyota Camry accelerated even as Lee applied the brakes before his Camry struck an Oldsmobile Ciera in St. Paul. Three family members in that car died.

The jury sided with Lee's family and the family in the Ciera, awarding them $10.9 million. Toyota has asked Montgomery to overturn the verdict, saying Hilliard's theory was flawed and Toyota could not answer it because plaintiffs' attorneys go last in closing arguments in Minnesota federal courts.

In fact, Hilliard did not come up with his theory the night before closing arguments. He disclosed it to me early in the trial, with the understanding that I not report it until he cross-examined Toyota witnesses.

Hilliard told me, and later told the jurors, that as Lee exited Interstate 94, he tapped the gas pedal, not realizing that each time he did so, the accelerator stuck at a higher level. His theory came from testimony by automobile safety consultant John Stilson.

"If stuck at that speed and then the accelerator is pushed additionally, what happens?" Hilliard asked him at trial.

"It will keep binding," Stilson responded. "If you push down, it will stay there."

When Toyota attorneys did not challenge the theory, Hilliard decided to hold off using it in his cross-examinations, and save it for his closing argument. Under the rules, Toyota could not rebut it. "I had no obligation to spoon feed Toyota my case," he said.

The jury found Toyota 60 percent at fault, and Lee 40 percent. Montgomery's decision will be closely watched.

randyfurst@startribune.com Twitter: @randyfurst