Do you remember the tale of Jeff Murphrey? He was the Houston-based attorney who tried to reschedule a deposition after Hurricane Ike caused significant property damage to his home.

When Dallas-based attorney Dale Markland objected (and requested Murphrey to pay rescheduling fees) Murphrey fired off this letter, which then went viral.

Well apparently Dale Markland (a.k.a J.R Ewing) has responded to Murphrey’s insult by devoting a whole section of his firm’s website to the spat. Here is Markland’s attempt to set the record straight:

* The hurricane in the Houston area occurred on September 12/13;

* Mr. Murphrey cancelled the deposition on September 23 when I was already on my way to Fort Wayne, Indiana for the deposition;

* I first got notice of this cancellation by cell phone message while in Chicago O’Hare Airport rushing to catch my connecting flight to Fort Wayne;

* The voice mail message I received in Chicago stated that Mr. Murphrey cancelled the deposition because he had meetings with contractors and city officials related to hurricane damage. It stated nothing about the horrors Mr. Murphrey addresses in his September 26 letter.

* Our firm’s attorneys attempted to gain Mr. Murphrey’s agreement that our client be recompensed for the unnecessary attorney’s fees and travel expenses entailed in my needlessly going to Fort Wayne. This is appropriate and professional behavior for attorneys who are representing their clients properly under the Texas State Bar Disciplinary Rules and The Texas Lawyers Creed. It is also, in my experience, not abnormal behavior for an attorney properly representing his client. If I had been in Mr. Murphrey’s shoes, I would have paid for the fees and expenses out of my firm’s pocket.

* Mr. Murphrey agreed to pay the travel expenses but declined to pay the attorney’s fees for the useless trip to Fort Wayne.

* It was not my fault or the fault of the client who pays my fees and expenses that Mr. Murphrey did not cancel the deposition until I was on my way to Fort Wayne.

* If Mr. Murphrey had simply picked up the telephone and called me, or had sent me an email or letter sometime between the hurricane on September 12/13 and when I left for Fort Wayne on September 23, I would have gladly agreed to re-set the deposition he had noticed. Then my client would not have been stuck with the fees and expenses of my useless trip to Fort Wayne.

* The first I knew of Mr. Murphrey’s story of horrors regarding his home damage was when I received his September 26 letter—after he cancelled the deposition, after I had made the useless trip to Fort Wayne, after I had appropriately determined whether Mr. Murphrey or his client would pay for the needless fees and expenses and after he had declined to pay my client for the fees.

* I am very sympathetic to Mr. Murphrey and his home situation, but it is not my client’s fault that Mr. Murphrey failed to cancel the deposition before I left, and the client should not bear this significant financial burden. My duty under Texas law is to uphold the interest of my client and that is what I have attempted to do.

More Markland excerpts after the jump.

It takes two lawyers to schedule a deposition. And while a third-year associate might view a deposition as the most important event scheduled in a calendar year, most seasoned attorneys can be expected to show some flexibility when it comes to scheduling conflicts.

After Hurricane Ike struck Texas, attorneys at Markland Hanley and Tekell, Brook, Matthews & Limmer tried to reschedule a deposition. But the people at Markland Hanley wanted Tekell to reimburse them for travel expenses.

Hilarity ensued when Tekell attorney Jeff Murphrey responded to Markland Hanley’s request for reimbursement fees:

I am sorry that a hurricane hit Houston

I am sorry that upon returning to my home Monday, September 22, 2008, I discovered a roughly 50ft. x 6ft. swath of human excrement, used condoms, and all the other niceties that come with a raw sewage leak into one’s backyard which drains into one of the main bayous in Houston.

I am sorry that I had to threaten City of Houston officials with lawsuits and local news exposure in order to get them to even agree to meet with me about cleaning up the problem.

I am sorry that these city officials chose a date that interfered with our deposition and gave me no other options.

Murphrey goes on to explain the extraordinary steps that were taken to cleanse his backyard. He also claims that he agreed to pay reasonable travel expenses.

Murphrey then adds:

I am sorry that you think the judge should be involved in this matter. I wonder if the judge will be sorry about that, too.

We don’t know all the details of the back and forth between Markland Hanley and Tekell. But maybe they need to add a “hurricane aftermath” section in the MPRE.

Read the full memo after the jump.

An excerpt from a deposition taken last month in Dallas, Texas:

Plaintiff’s Counsel: Remember we still have a trial. There will be some more of it come up then, but no reason to go over it all now. Can’t have it all. You’ll have cut your hair by then, you know.

Witness: You have a thing about my longer hair, don’t you? Are you jealous or what?

(Off-the-record discussion.) (Exhibit No. 25 marked.)

Witness: Well, you’d probably look better if you shaved it. Anyway, go ahead.

Counsel: I know you would be. I know you would look better if you shaved yours.

Witness: Do you really think so?

Counsel: Yeah, I really do.

Witness: That’s amazing. Your wife doesn’t think so.

Charming. You can read an extended excerpt — which also includes this line of testimony, “Come on, old man. Say something about my hair.” — over here.

Gretidog Field Day: Oral and Videotaped Deposition of Darwin Deason [Infirmation / Greedy Texas]

Last summer, we wrote about the stinging benchslap that Judge Loretta Preska (S.D.N.Y.; pictured), the highly regarded Manhattan trial judge, administered to Cleary Gottlieb, the highly regarded Manhattan law firm. Judge Preska sanctioned the firm for what she viewed as the improper attempt by one partner to dissuade a witness from attending a deposition. At the time, Cleary announced its intent to appeal.

And appeal it has. Writes Anthony Lin, in the New York Law Journal:

It was a matter of honor that brought Cleary Gottlieb Steen & Hamilton to the 2nd U.S. Circuit Court of Appeals Wednesday morning. Several lawyers from the firm, led by managing partner Mark Walker, were present in the ceremonial courtroom of the Daniel Patrick Moynihan U.S. Courthouse.

A matter of honor. Will there be a duel? Guns all around, says SCOTUS.

Well, maybe not a literal duel. But Cleary’s counsel, the distinguished Roy Reardon of Simpson Thacher, did mix it up with opposing counsel, Kevin Reed of Quinn Emanuel. As did the Second Circuit panel:

The 2nd Circuit judges asked [Reed] whether Kensington had been unreasonable in insisting that the deposition be held on Feb. 4 in Washington when a Paris deposition seemed a reasonable compromise.

“Everything would grind to a halt if lawyers couldn’t accommodate each other,” said Judge Miner.

“Everything would grind to a halt if everyone resorted to self-help as Cleary did here,” Reed replied. He later added: “You don’t go to the witness and say the sort of things [Cleary partner Jean-Pierre] Vignaud said, which can only have the effect of intimidating a witness and shaping his testimony.”

So the alleged attempt by Cleary to dissuade a witness from attending a deposition arose out of a familiar dispute over depo location. Perhaps the parties should have taken a page from Judge James Nowlin’s playbook, and taken it to midfield. Anyone up for a depo on a north Atlantic cruise ship?

Update: As noted over in the Community section, the sanctions against Clery Gottlieb were upheld by the Second Circuit. For more, see the New York Law Journal and the WSJ Law Blog.

Cleary Seeks Vindication in Appeal on Sanctions [New York Law Journal]

Earlier: Benchslap of the Day: Judge Preska Reprimands (Wait for It)… Cleary Gottlieb?

This may not happen to men, but many a woman has put on an outfit and discovered later that it is more sheer than she realized in the dim light of her home. In sunlight, or in an office’s bright fluorescent glow, the underthings suddenly become visible — if one is lucky enough to be wearing underthings. Usually, a good friend will point this out to the inadvertently scandalously-clad woman.

A reader sent us an excerpt from a recent deposition transcript, currently making the rounds by email, which apparently captures an occurrence of just this sort. It seems that the not-to-be-named lawyer, aka “Ms. B” (pictured), did not have a good friend to point out the sheerness of her attire.

Instead, an expert witness did so, at the end of a long deposition. Then “Ms. G,” counsel to the witness, echoed her client’s concerns.

The exchange got a little testy. Check out the depo transcript, after the jump.

“That’s Wider, W-I-D-E-R. Got it, f**k face? You’re welcome.”

We thought that this deposition was one of the more colorful ones out there. But it pales in comparison to the deposition described by Shannon Duffy in today’s Legal Intelligencer:

A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a “spectacular failure” because of the client’s constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer’s failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp. (PDF), U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in “hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony.”

Robreno noted that Wider used the “F word” or variations of it 73 times during the deposition and that the video shows that his lawyer, Joseph R. Ziccardi of Chicago, at one point “snickered” at his client’s conduct. Ziccardi was also to blame, Robreno found, because he failed to stop his client’s tirades and persuade him to answer questions.

The F-word does indeed have many variants. See Sterling Johnson, English as a Second F*cking Language; Jesse Sheidlower, The F Word: Second Edition.

Read more about the deposition’s dirty details, after the jump.

(We realize this is old news, but we’re declaring this Remedial Blogging Day at ATL. We have a few other slightly stale stories that we may write up later today, if it continues to be a slow news day.)

Judge Harold Baer (S.D.N.Y.) was once nominated as a hottie of the federal judiciary. Alas, he didn’t win.

But in a competition for hotheadedness rather than hotness, Judge Baer might fare better. From a very interesting article by Anthony Lin in the New York Law Journal:

A Manhattan federal judge has delivered a lengthy manifesto against declining civility in the legal profession in the course of sanctioning law firm Dorsey & Whitney and two of its partners.

Southern District of New York Judge Harold Baer opened his 129-page decision with a discussion of how “naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result.”

He ended it with his observation that “partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable hours is not only the alpha and omega of bonuses but that these hours — or at least the ones that count — often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession.”

Usually when a federal judge tears you a new one, you just grin and bear it. Or maybe go out and buy some Preparation H.

But the lawyer who was the subject of Judge Baer’s ire actually struck back. Read more, after the jump.

Yes, we linked to it previously. But we love this video clip so much, we’re going to link to it again. Check it out here.

Speaking of hilarious depositions, we’d like to solicit your funny stories about depositions gone awry. Please submit them to us by email (subject line: “Deposition Story”).

Most of the depositions that we attended back in the day were pretty boring affairs (and once we fell asleep in one). But lately we’ve heard some amusing deposition anecdotes.

We heard an especially good one involving a Cravath partner who couldn’t keep her hands to herself. Or maybe she could — and that was precisely the problem….

Anyway, check it out, after the jump.

It’s not nearly as entertaining as the Promiscuous Firm music video from those Canadian law students. So don’t get your hopes TOO high.

But this video, in which a lawyer aspires to the legal-geek distinction of making the cover of the ABA Journal, has its moments. So we’ll pass along it to you, and you can check it out depending upon how bored you are today:

(The two moments that we chortled at were the least politically correct lines. We suspect that the ABA, one of the more PC organizations on the face of planet Earth, would be less amused.)

UPDATE: In our opinion, this video is far more entertaining — even though, as a videotaped deposition, it really shouldn’t be. We will refrain from further comment because we will only get ourselves in trouble.

Bob Noone & the Well Hung Jury Live at the Greenbrier Resort [The Billable Hour]
Cover of the ABA [YouTube]
What Is It With Texas Depositions? [Sui Generis]

Depositions can be pretty boring affairs. Back when we were in private practice, we once fell asleep during one.

But the deposition of Andrew Fastow, former chief financial officer of Enron, appears to have kept people awake. The Times offers an interesting and detailed account of Fastow’s “moment in the sun.”

This was our favorite part:

Tensions were high [on the] first morning [of the eight and a half days of testimony], according to several people who witnessed the deposition. About 30 lawyers packed into the main conference room, sitting on either side of Mr. Fastow. Almost 40 more watched on video feeds in two overflow rooms.

Suddenly, four shadowy figures with ropes appeared, hanging outside the windows of the main room, which had the blinds drawn. A marshal scrambled to the windows. One lawyer for a major bank said the figures resembled ninjas. It turned out they were window washers.

Wow. If four ninjas, secretly hired by the seven non-settling banks, had executed a hit on Enron’s ex-CFO — right before the start of his deposition, in view of some six dozen lawyers — that would have made it the most exciting deposition in history. (Even more exciting than this one.)

Instead, the Fastow deposition will have to settle for being one of the most expensive ever:

The deposition drew lawyers representing 10 major banks and top Enron executives who have not been charged with crimes. It was also streamed live over the Internet so law firms in New York, London and elsewhere could listen in.

With the typical lawyer in the case billing about $450 an hour, the legal fees just to follow the testimony could cost at least $2.1 million, and the overall price tag of the litigation is expected to reach hundreds of millions of dollars.

There have to be better ways to spend two million bucks than to blow it on making a middle-aged, grey-haired numbers guy walk lawyers through internal bank documents. Any ideas?

Fastow Gets His Moment in the Sun [New York Times]

* Our first annual ERISA Hotties Contest is over, and America’s hottest pension and employee benefit lawyers have been crowned. Some other great candidates were passed over; but hey, not everyone can win.

* The new season of Survivor: an exotic Cook Islands setting, interracial conflict — and hot Asian lawyers.

* Practice pointer: When preparing a witness for a deposition, advise him not to drop the F-bomb.

* Wachtell Lipton just doled out midyear bonuses to its lucky (and hard-working) associates.

* Summer associates: still as wild and crazy as ever. And occasionally moronic, too.

* Law firm nicknames: Is your firm on the list?

* Sorry, right-wing gunners: Justice Scalia is done hiring his clerks for October Term 2007.

* Viet Dinh, the Georgetown law prof and former OLP kingpin advising VC god Thomas Perkins in L’Affaire HP, really loves hugs — and nice real estate.

* Outstanding discovery requests: Fashion Victims, Internal Memos, Legal Celebrity Sightings, Skaddenfreude.

One of our finest moments in private practice took place during a deposition. We had been up the entire night before, along with the paralegal on the case, pulling documents and preparing deposition outline material for the partner.

It was a critical deposition: the deposition of the plaintiff, a billionaire businessman (on the Forbes 400 — although not as high as Bruce Kovner). The questions were being asked by the partner, but we were on hand to watch and assist.

Several hours into the deposition — due to our sleep deprivation, coupled with less-than-scintillating testimony — we started to nod off (as did the paralegal). The plaintiff noticed. After the partner asked a question that was very similar to a prior question, the plaintiff exploded: “You already asked me that. Your questions are so boring and repetitive, YOUR OWN COLLEAGUE IS FALLING ASLEEP!”*

But if we had been attending this deposition, we wouldn’t have fallen asleep. Here’s a bit of context for the video clip, contained in the email that forwarded it to us:

The attached deposition excerpt will underscore the importance of good witness preparation and steady questioning technique when taking. (Pay special attention to the defending attorney’s studied silence on the tape because the witness obviously was in firm control.) Also, note the excellent follow-up question at the end by the questioning attorney.

Click on the video clip below to play — and be sure to listen through to the end, ‘cause that’s where the best stuff is. Enjoy!

(Our “preemption check” was cursory, so if this video has been previously discussed on another website or blog, we apologize.)

* You’re probably wondering what happened to us, after we fell asleep during the most important deposition in the case, and got made fun of — on the record — by the billionaire plaintiff.

No, we didn’t get fired. In fact, the partner was very gracious and understanding. In the elevator after the deposition, he told us: “I know you and [the paralegal] were up all night. So don’t worry about it. When I was an associate, I fell asleep during a deposition too. The problem was, I was taking it!”

Tough Deposition Questioning [YouTube]

Earlier: Not Your Typical Deposition

We sure are glad we never worked on any sexual harassment cases when we were in practice. The depositions can get pretty awkward. Check out this video:

Yes, the video is a gag. But read the comments appended to this post at Concurring Opinions. Oy!

Candid Camera: Legally Punk’d [YouTube via Concurring Opinions]