Litigation

DLA Piper won't 'like' this lawsuit.

DLA Piper won’t ‘like’ this lawsuit.

Biglaw firms love having Facebook as a client. The firms and lawyers that represent Facebook often brag about it on their websites and in conversation. The former scrappy startup is now an S&P 500 component with a market capitalization of $200 billion. It’s great to have Facebook as a client.

It’s less great to have Facebook as your courtroom adversary. But that’s exactly the position that DLA Piper finds itself in. Earlier today, the social-media giant filed a lawsuit against the Biglaw behemoth, as well as several other lawyers and law firms.

Why does Facebook want DLA to pay the piper?

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dartboard pen on target inside straightFirst, an example; then, a rant.

Here’s the example: I attended a mediation. The mediator gave each side 20 minutes to make an opening presentation. After one advocate had spoken for 80 — you read that right: 80 — minutes, the mediator suggested that it was time for him to wrap up.

The guy flipped through his notes, said that he still had a lot of material to cover, and then offered: “To speed things up, I’ll just bullet-point my arguments.”

Before the “continue reading” icon, I’ll note the lessons to be learned from this tale that are not the subject of today’s rant. First: If you’re given 20 minutes to speak, speak for 20 minutes. Got that?

Second: If you’re given 20 minutes to speak, you drone on for 80 minutes, and the mediator then suggests that it’s time for you to wrap up, you may speak for about two more sentences. Then, it’s time to sit down. Got that?

Third, and the most valuable lesson — instructive, yet infused with a certain dry wit — . . . .

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Or at least between one group of plaintiffs and one group of defendants. A Missouri judge was hearing a challenge to the state’s ban on same-sex marriages. Then the plaintiffs filed for summary judgment and sought a permanent injunction directing county clerks to issue marriage licenses to same-sex couples. All pretty standard.

But then the Missouri Family Policy Council filed a brief in support of the defendants. Which was jarring for the Judge Ortrie D. Smith since the Missouri Family Policy Council was not a party to the case and had sought no permission to file anything with the court.

Benchslap ho!

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In last week’s column, I discussed the importance of effective deposition defense, with a focus on the client-facing aspects of the process. Now it is time to focus on the true star of the show, the witness.

Yes, some witnesses will be important, perhaps even a senior executive at a client. Or a technical expert, on whose testimony your case rides. And other witnesses will be more tangential, like the IT guy you need to defend with respect to e-discovery issues.

Yes, I understand that every witness is critical, especially when it comes to e-discovery. Human nature, however, is to treat “important people,” like executives and experts, with an extra level of care. As a lawyer, the key is to treat every witness you are preparing for deposition with respecr — while remembering your role as an advocate, tasked with winning your client’s case. Effective defense of depositions goes a long way towards achieving favorable litigation results.

Here are some tips:

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Ed. note: This is the latest post by Above the Law’s guest conversationalist, Zach Abramowitz, of blogcasting platform ReplyAll. You can see some of his other conversations and musings here.

In August, Personal Audio Inc. — a “patent troll” or a “patent holding company,” depending on your point of view — dropped its case against Adam Carolla for alleged violations of its purported patent on podcasting, or more specifically, creating sequenced playlists for download. Personal Audio apparently thought it could get a settlement out of Carolla, the same way it has against CBS and other big companies, by threatening expensive litigation.

But in his typical %^&# you fashion, Carolla proceeded to join forces with other podcasters, like Jay Mohr and Marc Maron, to crowdfund a legal defense fund against Personal Audio. The resulting litigation ultimately caused Personal Audio to drop its lawsuit. Mike August is a former William & Morris agent, an attorney, and the business manager of Carolla Digital. He has been nice enough to answer some of my questions and tell us about the future of podcasting and crowdfunded lawsuits.

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Biglaw litigators may enjoy healthy pay, but they are also the target of some ribbing — particularly from the trial-lawyers bar. Anyone who has practiced litigation in Biglaw has heard that they are at best a “deposition lawyer,” better suited for churning out endless motions than for performing in front of a judge or jury. There is no doubt that for the majority of Biglaw litigators deposition experience is much easier to come by than trial experience. And while trials are definitely more intensive and fun, in my experience preparing for a critical deposition in a patent case is in a way more difficult. Unlike at trial, where nearly all of the direct and cross examinations are scripted, there is an element of the unknown at a deposition.

When it is an important witness, such as a technical or damages expert, everyone involved in the case knows that a deposition can be a make-or-break event. In fact, one of the things that makes preparing for trial testimony easier than preparing for a deposition is that when we prepare for trial, we rely heavily on prior testimony in the case. The best source for that prior testimony? Deposition transcripts. But going into a critical deposition, there is much more uncertainty. Everyone on the team worries if the witness will hold up. Does not matter how experienced the expert is, or how senior a business person. The wrong answer can doom a case.

While it may seem like deposition defense is a thankless job, it also provides a priceless opportunity to “hear” your opponent’s approach to important issues in the case. And that can be even more valuable than trying to extract information from a well-prepared witness at a deposition you end up taking at another point in the case.

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I recently had the good fortune to hear Ian McEwan (author of the wonderful Atonement, among other books) and Steven Pinker (a name I’d never heard before — yet more proof of my vast ignorance) discuss what makes good writing. McEwan is of course a gifted novelist; Pinker is a cognitive scientist who thinks about (among other things) how children acquire language skills. This made for an interesting discussion.

Both authors had recently published new books. If you don’t want to spring for the price of Pinker’s book, you can read the nutshell version of his thesis in his recent article in the Wall Street Journal.

I stole the title of this column from Pinker’s talk. Pinker says that many people blame the internet for the younger generation’s inability to write clearly. But if Twitter’s the culprit — “the kids these days can write only 140-character sentence fragments” — then the world should have been awash in pristine prose in the days before Twitter.

We were not, of course. Most writing sucked in the ’90s, too. And in the ’80s. And the ’70s. And, according to Pinker, people have been complaining about bad writing in literally every generation since the invention of the printing press.

So it would be nice — but wrong — to blame today’s bad writing on modern technology.

If technology isn’t the culprit, then what is? Pinker’s thesis is one that I suspect all good legal writers have known subconsciously all along. But it’s worth speaking the words out loud and thinking about how to use this concept to improve both your writing and the writing of those you edit. . . .

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In past columns I wrote about how a lawyer and a judge use iPads as part of their daily routine. And there’s a good reason that iPads were the first tablets discussed; it’s because the vast majority of lawyers who use tablets in their practices choose the iPad. In fact, according to the 2014 ABA Legal Technology Survey, 84% of lawyers surveyed who used tablets preferred the iPad and only 10% used Android devices, with the remaining 6% using other types of tablets.

The lawyer I’ll be featuring today, Scott Bassett, is one of the 6%. Scott is a solo practitioner who lives in Florida with a practice focused on Michigan appellate work, and his tablet of choice is the Sony Digital Paper model #DPT-S1. Even though his Sony tablet costs more, he prefers it over the iPad because it’s versatile and substantially lighter: “My tablet is so thin and light you barely know you’re carrying it. At $1,100 it costs nearly twice as much as the iPad, but weighs half as much as the iPad Air. Not only is it lighter, it has a full-size, 13.5-inch screen, so documents appear on my screen full size. It’s a better screen than the iPad Kindle app because of the backlit LCD screen. It’s much easier to read and offers better reading comfort when you’ve got hundreds of pages of trial transcripts to read through. And, the batteries last nearly an entire month.”

What are some of its other advantages?

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Alma Asay

It’s the one about the tech-illiterate Biglaw associate (I know, you’ve heard that one) who walks away from her promising career at one of the most prestigious law firms in the country . . . to invent a new category of software. . . for litigating! A magical software program that makes you better as a litigator and is so cool that you wish you thought of it yourself.

For this next profile in legal entrepreneurship, I’m excited to introduce Alma Asay, creator of Allegory. You may not have heard of Allegory yet, but pretty soon, it will be a household name for every litigator who wants to be at the top of their game.

Alma’s story has a special place in my heart because she is living my dream: bringing her success in Biglaw to the whole legal community through the wonders of technology. I met Alma earlier this year in Palo Alto, where she was embracing her inner Silicon Valley and I was speaking at Stanford Law’s awesome CodeX FutureLaw conference.  We chatted over cocktails about the legal industry, law firm shenanigans, and life after Biglaw for those of us who didn’t run away screaming. I loved her stories of adventures in legal startup, and her product. Hopefully, you will too.

(Did I mention I get paid by the click?  I’m kidding, but really, keep reading . . . this is a good one).

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Appellate practices are great.

For lawyers who enjoy thinking and writing, but don’t have much taste for the hand-to-hand combat of discovery, appellate practices are pure joy. Appellate advocates bask in the intelligence and majesty of the law, without having to do daily battle with psychopaths.

For big firms, appellate practices are the crown jewels of the litigation side of the shop: “We’ve argued cases in the Supreme Court!” “We participated (either on the merits or as amici) in ten percent of the Supreme Court’s docket last year!” Shout it to the heavens! What’s the implicit message?

“We’re doing these cases for free!”

Oh, Herrmann, you’re such a cynic. Surely the implicit message is: “We’re God’s gift to advocacy!”

It’s a marketer’s dream.

But one leading appellate lawyer recently told me that the Great Recession has hurt his practice in ways you wouldn’t expect. And I’m here to tell you that, although appellate practices done right can help a firm, appellate practices done wrong are dangerous things . . . .

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