Andrew Breitbart

Litigators can fall victim to their own imaginations. It’s really built into the system when they’re encouraged to write their exhaustive wishlists during discovery and fill their own dreams with visions of terabytes of entirely incriminating evidence. When discovery inevitably fails to live up to those dreams, litigators have to make a decision between accepting disappointment or accusing the other side of wrongdoing for failing to fulfill those sugarplum visions. Litigators are basically Captain Hindsight, constantly shocked — SHOCKED — that no one understood years ago how important something would be to a case today.

Kirkland & Ellis chose the latter, writing counsel for a non-party — yes, a non-party — suggesting that he was withholding evidence because he hadn’t kept every single email they thought he might have from four years — yep, four years — earlier.

And then this guy’s lawyer went brutally funny on them….

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Yes, benchslaps are great fun to read about, especially if you enjoy a little schadenfreude. But benchslaps are not fun to receive — and they’re not always justified.

Because of the prestige of judicial office, judges generally get the benefit of the doubt when dishing out benchslaps. But sometimes judges go too far. For example, some observers felt that Judge Richard Posner crossed the line when interrogating a Jones Day partner during a recent Seventh Circuit argument.

This brings us to today’s benchslap — directed at a lawyer for the federal government, no less. It’s harsh, but is it warranted?

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I met Andrew Breitbart three weeks ago. We both were on a Huckabee Show panel that subsequently got bumped when news of Whitney Houston’s death broke. I’m not terribly sorry, it wasn’t one of my best. But the chemistry between us was pretty good, off-camera at least. After the show I texted him and he said we should try to set up a debate again.

Now he’s dead, and it’s all pretty shocking to me because four weeks ago, Andrew Breitbart would have been in the running for people I would be least concerned about if they happened to die. And it’s not like I had any kind of political conversion, and I don’t have a particular soft spot for saying nice things about dead people just because they died.

So why in the hell am I about to say something nice-ish about Andrew Breitbart?

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If you thought this whole Shirley Sherrod thing was just going to blow over, well, you’re not thinking like a lawyer interested in generating fees. Burned by Andrew Breitbart’s editing skills, Sherrod says she intends to sue. The New York Daily News reports:

“I will definitely do it,” Sherrod said at the National Association of Black Journalists convention in San Diego.

Sherrod said Andrew Breitbart knew what he was doing when he posted a doctored video that made it appear she was boasting about mistreating a white farmer.

“I knew it was racism, and no one had to tell me that,” she said. “Right will win the end.”

Oh Jesus Christ, please don’t tell me I’m going to have to defend Andrew Breitbart

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