Depositions

If you already know what I’m talking about, I’m sorry — I don’t have very much to add. The deposition is so damn short, the transcript doesn’t contain case-identifying information, and the pdf has been stripped of its metadata. Really, I only know what you know: a hilarious deposition took place earlier this month.

For those who are in the loop, there’s been this deposition making the rounds on various lawyer listserves. From what we can tell, it’s a real deposition in what appears to be a divorce or some other type of family-law proceeding. The deponent is named Kevin Phillip Gartner; of all the Kevin Gartners in Google, we can’t be sure of which one. The lawyer taking the deposition appears to be Denise Watson, a Jacksonville area lawyer. When I tried to contact her, I was told she is “unavailable, this week.” The lawyer valiantly trying to represent Kevin Gartner and defend the deposition is known only as “Mr. Dorsey.”

That’s all I got: a name, a no-comment, and the mysterious Mr. Dorsey. Normally, that wouldn’t be enough for a full post. But you’re going to want to see the depo transcript for yourself….

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* If you root for your law school alma mater over your undergrad alma mater, you are the kind of unprincipled betrayer who deserves the very worst of all that life has to offer. [PrawfsBlawg]

* Did you know that university professors could get fired for appearing in burlesque shows? [Siouxsie Law]

* Some thoughts on what black prospective law students should consider when choosing a law school, from Yolanda Young. [On Being a Black Lawyer]

* Best. Deposition transcript. Ever. [WSJ Law Blog]

* Please, please, please, let there be many character and fitness boards who will ding this law student who stomped a bird to death. [Huffington Post]

* Happy Purim, everybody. And if you are an Irish Jew, I wish your liver the best.

Ed. note: This is the latest installment of Inside Straight, Above the Law’s column for in-house counsel, written by Mark Herrmann.

This column comes from a narrow perspective — that of a litigator and, in particular, an in-house head of litigation.

I suspect that in-house SEC lawyers, or M&A lawyers, may have entirely different perspectives on this topic. But as a litigator, I pay a lot of attention to briefs and other written work. Why is that?

Because I can.

When I was a partner at a firm, I’d let junior lawyers argue motions. For significant matters, I’d chat with the lawyers beforehand, to discuss how to approach an argument. But I almost never attended those arguments. Maybe I should have (for reasons of associate training and evaluation), but I generally viewed sending myself as an observer to be over-staffing an event. I thus rarely saw associates on their feet in court.

I also didn’t double-staff depositions. In mass torts (which was a lot of my practice, way back when), senior lawyers typically defended depositions, and more junior lawyers typically took them. This is partly driven by the nature of mass torts; in that environment, deposition defense is critical. If the senior VP of research and development gets her clock cleaned in deposition, that testimony will come back to haunt the client in hundreds of later cases. In mass torts, senior lawyers play deposition defense….

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The alleged foot tapper

A pair of motions are bouncing around email inboxes this week, thanks to the “foot-tapping lawyer.” (This has nothing to do with Larry Craig, so read on without fear.)

It all started in July, when Florida law firm Rasco Klock sent a paralegal to Wilmington for a deposition. The firm is representing a plaintiff suing an insurance company, but one of their lead attorneys, Juan Carlos Antorcha, had to remain in Miami and conduct the deposition by video, with the paralegal handling the exhibits in person.

During the deposition of a witness for the defense, a strange noise caught the attention of the Perceptive Paralegal. After hearing clicking, he peeked beneath the table and saw a defense attorney’s foot tapping the foot of the deponent. He snapped a photo with his smartphone and sent it to Antorcha, who confronted the defense and halted the deposition. Rasco Klock then filed a very angry motion for sanctions, accusing the defense attorney of coaching the witness through foot tapping.

From the motion:

Before accusing a lawyer of acting in an unethical and unprofessional fashion, a fellow lawyer must think long and hard. Was the breach intentional? What were the circumstances? Was there any sense of contrition? Could the offending lawyer believe that his conduct had been appropriate?

The lawyer accused of foot-tapping is Brown Sims shareholder Kenneth Engerrand. On every single page of the 13-page motion for sanctions against him is the incriminating footsie photo…

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jr ewing aka dale markland.jpgDo 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.

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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.

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Ms. B copy.jpgThis 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.

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foot in mouth.gif“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.

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(And Client of the Day: Aaron F**king Wider)”

tape office tape Scotch tape Cravath Swaine Moore Above the Law blog.jpgYes, 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.

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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]

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