Litigators

The information age we live in can be a blessing and a curse. Few fields demonstrate this truth more persuasively than the realm of electronic discovery.

During a panel here at the Legal Technology Leadership Summit on the theft and exfiltration of intellectual property, the panelists discussed the exponential growth in information densities, the increasing importance of IP, and the challenge that evolving technology presents to the governing legal frameworks. As one panelist noted: “Technology leaps, the law creeps.”

What does rapidly changing technology mean for the e-discovery world? And what are some considerations that in-house lawyers should keep in mind when responding to e-discovery requests?

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When is a litigator thinking most keenly about a specific witness’s testimony?

There are two days: The day you’re taking (or defending) the deposition of the witness, and the day — months or years later, if ever — when you’re examining the witness at trial. So when should you be making notes about the witness’s testimony and your reaction to it? That question answers itself: You should make quick notes of key points during the deposition, and you should write notes to yourself immediately after the deposition ends. “Immediately after”: Not later in the week; not the next morning. Now, when your brain is fully engaged.

Those notes don’t have to be comprehensive, but they have to memorialize the things that you noticed during the deposition that you’re likely to forget by either the next morning or the day, a month later, when you’re reviewing the transcript. The notes are quick and easy. Write an e-mail to yourself that says: “Today I took Smith’s deposition. These were the highlights: (1) He admitted A; (2) He denied B; remember to create some other admissible evidence on that point; (3) He evaded on C; there’s something fishy going on there; (4) Opposing counsel started interrupting when I got near D; we should press harder on that point; (5) His testimony opens up issue E; let’s do some legal research.” There might be a half dozen points; there might be a dozen. But the key is to record immediately the fleeting ideas that you had while your brain was most in gear.

During the deposition, you’re as attentive as you’ll ever be. Don’t lose the moment; capture it.

What do you use those notes for?

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Recently I talked to a fourth-year-associate friend of mine who’d been working at a new small firm for several months. When I asked him how it was going, he said “great” in a way that suggested anything but. So I pressed him for more. The work was fine, he insisted. The clients were fine. His associates were cool. Great, I said. So what was the problem?

Well, he finally let on, there was this partner.

OK, I said. What about this partner?

Well, he said, he’s making my life a living hell. In fact, my friend said, it was so bad, he was thinking of leaving the firm.

What made this partner so horrible?

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Lauren Serafin and Robert Leighton

Chicago sounds like a tough town for romance. Check out the first Courtship Connection date that went down in the Windy City. Let’s hope that future dates go better.

Chitown was also the venue for Serafin v. Leighton. In this lawsuit, a lovely young lawyer, Lauren Serafin, sued her handsome ex-fiancé, Sidley Austin associate Robert Leighton, for “breach of promise” to marry. Serafin alleged that Leighton cheated on her during his Las Vegas bachelor party, with a woman named “Danielle,” and then broke off the engagement — saddling Serafin with almost $63,000 in wedding- and honeymoon-related expenses.

We now bring you an update on this saga….

double red triangle arrows Continue reading “An Update on Chicago’s Runaway Bridegroom and Jilted Bride”

Last night we wrote about a high-profile lawsuit: 3M v. Lanny Davis. Yes, that’s right: the maker of Post-its and Scotch tape is going after Lanny J. Davis, the noted D.C. lawyer and lobbyist, along with his client, Porton Capital (a group of private investors).

It’s a strange lawsuit, but the allegations in it aren’t new. Similar suits were filed by 3M in June and July, in New York state court. (And one of them is still pending, despite the filing of an action in D.C. federal court.)

The primary parties, 3M and the Porton Group, have crossed swords before. In fact, they’re litigating against each other right now in merry olde England, before the High Court in London. In the U.K. litigation, 3M is being sued by Porton Capital and by the British government (in the form of Ploughshare Innovations, an entity owned by the U.K.’s Ministry of Defence).

According to the Wall Street Journal, Porton and Ploughshare allege that 3M failed to diligently develop the BacLite testing technology, “a product already proved and used in Europe as a cheap and quick way of detecting methicillin-resistant staphylococcus aureus, commonly known as MRSA, a hospital infection.” The reason this is so upsetting to Porton and Ploughshare is that they were contractually entitled to receive royalties from 3M’s sales of BacLite. The plaintiffs in the U.K. case claim that 3M abandoned BacLite less than a year after buying it — after botching the BacLite trials, and declaring the testing technology non-viable — “in order to protect a 3M-developed detection product known as Fastman from the less expensive rival posed by BacLite.”

Got that? Okay. Now, some updates to our prior coverage….

UPDATE (9/2/11, 9:30 AM): An update to our updates: a statement from William A. Brewer III, counsel to 3M, has been added below.

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Lanny Davis

Physician, heal thyself? D.C. power broker Lanny Davis, a guru of crisis management, now has a crisis of his own to manage.

Davis has been hit with a federal lawsuit by, oddly enough, one of America’s largest corporations: 3M, the Fortune 100 company and Dow Jones Industrial Average component that’s famous for such products as Post-it Notes and Scotch tape. It’s surprising to see a mega-corporation like 3M going after a high-profile lawyer like Davis.

When you see a large corporation suing a prominent attorney like Davis — who, before launching his own firm last year, was a partner at such firms as McDermott Will & Emery, Orrick, and Patton Boggs — you might expect a malpractice claim. But that’s not the case here….

UPDATE (10:50 AM): Comments from Lanny Davis and his client, the Porton Group, have been added below. They point out that this is 3M’s third bite at the apple — the company previously filed two similar cases in New York state court. (The first suit was withdrawn, while the second still appears to be pending — rather strange, given the D.C. federal court filing.)

UPDATE (5:50 PM): Here is more information about 3M v. Lanny Davis.

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Many litigators have a bias against settlement. It’s understandable. There’s no glamor in settling cases. No one is ever going to make a TV show called “The Settler,” about a young but scrappy underdog lawyer who fiercely negotiates tough-but-fair settlement agreements and always remembers to allow a 21-day waiting period if the plaintiff is 40 or over. (On second thought … better call my agent.)

Forget TV and movies. No lawyer has ever come home with the exciting news about settling a lawsuit (at least, no defense lawyer). “Honey, I settled the Devens case!” “That’s great, dear. Now go mow the lawn.”

In the midnineties, I was a junior associate working on a contentious sexual-harassment case. While we were able to win partial summary judgment, the main claims headed to trial in federal court. During the negotiations before the trial, the partner from my firm had a conversation with the plaintiff’s lawyer, who was that sort of rough-around-the-edges attorney who prided himself on spending a lot of time in the courthouse.

Looking to put my boss in place, the guy took a shot at our firm’s litigation style. Here’s what he said …

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Gregory Berry

One of the most compelling characters to populate our pages lately is Gregory S. Berry. As you surely recall, Gregory Berry is the Penn Law grad and ex-associate at Kasowitz Benson who is now suing his former firm for a whopping $77 million.

Thus far, reader sentiment doesn’t seem favorable towards Berry. According to Above the Law sources, Greg Berry wasn’t popular at Penn Law, where he was known for sending strange emails about his traffic court misadventures to his classmates. A tipster who knew Berry during his first career, as a software engineer who “conquer[ed]” Silicon Valley, expressed the view that Berry was “very inflexible,” lacking in a sense of perspective, and “not a good fit with the dot.com 1.0 work-style.”

In fairness to Berry, however, we have heard more positive opinions as well. For example, one Penn classmate described Berry to us as “a nice, smart dude, and a go-getter.”

And now a second source has contacted us, also to defend Greg Berry — and to criticize Berry’s former employer, Kasowitz Benson Torres & Friedman….

double red triangle arrows Continue reading “In Defense of Gregory Berry (Plus a few more funny stories.)”

Juliette Youngblood and Morgan Chu

Last month, Juliette Youngblood, an ex-partner at the elite California law firm of Irell & Manella, filed suit against her former firm. In her lawsuit for sex discrimination and wrongful termination, Youngblood advanced a whole host of salacious allegations — including a report of sexual harassment by Morgan Chu, arguably the nation’s #1 intellectual-property litigator.

Irell did not respond to the lawsuit at the time. Now it has, in a blistering 22-page filing that calls Youngblood’s claims “meritless” and “utterly false, complete fabrications manufactured out of whole cloth.”

What does the firm have to say about the specific claims made by Youngblood — such as the allegation that a drunken Morgan Chu made inappropriate and offensive comments to her at a firm happy hour, including remarks about her physical appearance and about “objects entering [Youngblood's] body”?

And what do ATL sources, including readers familiar with both Youngblood and Irell, think of the situation?

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Firm denies claims and moves for arbitration.

Above the Law’s popular, somewhat tongue-in-cheek advice column, Pls Hndle Thx, has been on hiatus. Marin has been busy following the career of John Stamos, and Elie is on vacation this week. (He’ll be back on Monday.)

In the meantime, we have a request for advice from a reader. Let’s take a look at it, shall we?

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