deposition

Why do so many people think that you must be a blowhard to be an effective litigator?

I’ve recently heard several tales of business folks (or in-house lawyers) worrying that outside counsel is not aggressive enough. What prompts the concern is the lawyer’s performance during a conference call or at a meeting: The lawyer is civilized. The lawyer speaks quietly, asks probing questions, gives intelligent advice, and appears to be an effective advocate.

After the meeting, one of the participants says: “Are you sure we should use that guy? He doesn’t seem very aggressive.”

Remarkably (at least to me), I’ve heard the same thing at law firms. I’ve heard transactional lawyers wonder about litigators who are calm and intelligent at the lunch table: “He’s such a nice guy. I’m not sure I’d trust him in court.”

What’s my reaction? On the one hand, we can’t ignore perceptions. If a lawyer is so low-key that he doesn’t inspire confidence, then that is a legitimate concern. If I don’t trust the lawyer who’ll represent me at trial to defend me during a vigorous cross-examination, then that’s a real issue; we shouldn’t hire that lawyer. Confidence matters.

On the other hand, if the concern is simply that the litigator is not a blowhard — the lawyer speaks quietly and intelligently during business meetings, where there’s no need for bluster — then I have a very different reaction. In fact, I have three reactions:

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Mountain Dew: a mouse could not survive in this environment, according to PepsiCo counsel.

* Pepsi lawyers offer a creative (if disturbing) defense to a lawsuit by a man who claims he found a mouse in his Mountain Dew. [Madison County Record via The Atlantic Wire]

* Will birther queen Orly Taitz get to depose — i.e., “rupture the jurisprudential hymen” — of President Barack Obama? That would be kind of awesome. [Columbus Ledger-Inquirer]

* Professor Ann Althouse raises an interesting “who decides?” question about Cleveland’s controversial ban on trans fats. [Althouse]

* Please, lawyers, stick to cocaine. Allegations of crystal meth usage are très déclassé. [NewsOK.com]

* Kudos to Kirkland & Ellis for coming to the defense of lesbian and gay public employees in Michigan. [Poliglot / Metro Weekly]

* It seems that the Montana Supreme Court isn’t a fan of the Citizens United decision. [Huffington Post]

* Jamin Soderstrom, a (rather cute) former S&C associate and current Fifth Circuit clerk, has written a book (affiliate link) analyzing the qualifications of presidential candidates and the relationship between résumés and presidential success. [Tex Parte Blog]

* If you’re a law professor / blogger who wants to get a rise out of fellow profs, write posts in praise of Paul Campos (just voted our 2011 Lawyer of the Year — congrats again, Professor Campos). [PrawfsBlawg]

Always good for a laugh.

Well, we’ve got somebody who should be a late entrant into our Lawyer of the Year contest. He is Houston attorney Paul Waldner. He’s a partner at Vikery, Waldner & Mallia, which is an arm of Justice Seekers in Texas. He is a man who brings the funny with him to the deposition room.

Paul Waldner is a man who asks questions like: “So, your jurisprudential hymen is being ruptured?”

Oh, you think I’m joking? No sir, I have video!

And really, the witness’s answer might have been better than the question….

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A story I often tell is about the first time I took a deposition. I got there early, and I thought that the most important thing was to control the witness. I didn’t realize the first time around that the way you control somebody is not by intimidating them. But I adjusted the chair that I was sitting on so that I’d be really tall, and could look down imposingly on the witness. But I raised it so high that as soon as I sat down, I toppled over and fell backward.

Amy Schulman, executive vice president and general counsel of Pfizer, in a New York Times interview about her leadership style.

(Additional excerpts and discussion, after the jump.)

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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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Judge Sam Sparks

You do not want to mess with Judge Sam Sparks, of the U.S. District Court for the Western District of Texas. We recently wrote about Judge Sparks accusing a lawyer appearing before him of incompetence — in a harshly worded order that pulled no punches.

Judge Sparks has been doling out stinging benchslaps for years, and he’s gotten pretty good at it. In particular, His Honor has little patience for discovery disputes. In 2007, for example, he smacked down some lawyers squabbling over a deposition — in rhymed couplets, no less.

Last week, Judge Sparks lit more lawyers on fire….

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Have you ever been to a deposition that got physical? Maybe some fisticuffs, or a little shoving? No? Well, obviously you’ve been hanging out in the the wrong conference rooms.

A complaint filed in Santa Monica Superior Court and reported on by Courthouse News Service accuses a Drinker Biddle partner of “robust, unlawful force” that resulted in opposing counsel breaking his wrist. The alleged assault happened at the Beverly Hills office of the Excelus Law Group, a small law firm based in southern California. Attorney William W. Bloch claims that Drinker Biddle’s Henry Shields refused to leave his conference room after a deposition, and then assaulted him — with “some kind of martial art move.”

Shields and other Drinker Biddle attorneys who were there deny all of these allegations. And affidavits submitted by Drinker Biddle attorneys, as well as the actual deposition transcript, seem to paint a different — and much more hilarious — version of events…

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The joy that is the bar exam.

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One morning last week, I walked past dozens of loyal Apple customers lined up to buy the new iPad 2. I scoffed as I walked by, my old, beat-up iPod nano playing in my ears. I also had the misfortune of walking past the same store later in the evening.

A sign in the doorway said something like, “Sorry, you’re too late. We’re sold out, na na na na.” Of course sample iPads were spread across the tables for gullible saps like me to play with, and I couldn’t resist. I really wanted to be able to legitimately say the gadget is silly and excessive, but — curse you, Steve Jobs — that thing is really cool.

It’s been, obviously, an exciting week for the company, but coincidentally (or not?) the Apple legal team has probably been working overtime too. Apple is no stranger to litigation, and we’ve covered Apple’s legal wrangling before.

Details about Apple’s hyperactive legal week — why Steve Jobs got deposed, who owns the phrase “App Store,” and a company that claims Apple stole intellectual property — after the jump.

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* Still more benchslappery, this time from the Second Circuit. Professor Nita Farahany wonders whether Judge Gary Sharpe “may have missed a few important days of his genetics class in high school or in college.” [Law and Biosciences Digest]

* In other federal judicial news: I’ve never bought into the silly claim that Clarence Thomas is the jurisprudential puppet of Antonin Scalia — and Linda Greenhouse’s analysis of the Term thus far confirms CT’s independence from AS. [Opinionator/ New York Times]

* The ability of judges to be funny: AFFIRMED. [Supreme Court of Washington Blog]

* Remember the crazy deposition dispute over the definition of “photocopying” (which we previously linked to)? Here’s some additional background. [Lowering the Bar]

* Lawyers who rap are a dime a dozen; lesbian lawyers who rap are more rare (and more interesting). Meet GW Law alum Amanda Carter, aka “330.” [DCist]

* In other D.C. news, congratulations to the four bloggers behind Who Murdered Robert Wone?, whose sleuthing efforts have just been honored. [Washington City Paper]

* The estate of the defunct Heller Ehrman firm is getting $20 million, courtesy of Bank of America and Citibank. That’s nice. [Am Law Daily]

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