Litigation

From Biglaw to Boutique: Crossing the Line

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Tom Wallerstein

As readers of this site’s “Lawyer of the Day” posts everyone knows, lawyers and their clients can be guilty of all kinds of outrageous behavior. Litigation especially, with its inherently adversarial nature, seems to bring out the worst in people.

Bad behavior by lawyers comes in many forms. To non-lawyers, most if not all lawyers are jerks or worse. All bad behavior by lawyers is lumped together. But there are important differences.

A lot of bad behavior should be avoided simply because it is counter-productive. For example, an attorney may refuse to offer voluntary extensions of time to respond to discovery, or to a complaint. Aside from violating a principle of professional courtesy, that behavior also is ultimately self-destructive. In litigation, what comes around goes around, and granting extensions of time that will not prejudice your client is a prudent way to ensure later modest courtesies for yourself when needed.

Declining modest extensions to respond to discovery requests is especially unwise, as the responding party can always just serve objections, with the intention of serving substantive responses before a motion to compel can be filed. Because there is no instantaneous remedy for a failure to serve substantive responses, you often have little to gain by refusing a request for a modest extension of time.

Continue reading to find out when bad behavior crosses the line….

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Inside Straight: On EUSLAs, Depositions, And Trials

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I got caught.

In a column last week, I criticized a brief for using the alphabetical short form “EUSLA” to signify “end user software license agreement.” Depending on the circumstances, I suggested, one might shorten the name of that contract to “agreement,” “license agreement,” or “software license agreement,” but “EUSLA” just doesn’t work — it’s meaningless alphabet soup that doesn’t help the reader of a brief.

As I said, I got caught: The lawyer who had drafted the brief read my column, cleverly figured out who I was criticizing, and called to take issue with me. (Serves me right for using real-world examples in this forum, I suppose.)

“You’re wrong, Mark,” my outside counsel said. “We called that contract an ‘EUSLA’ in all of the depositions in the case. When we quoted deposition transcripts in the summary judgment brief, those quotations called the contract an ‘EUSLA.’ We would have confused things if we called the contract an ‘EUSLA’ in the deposition excerpts and a ‘software license agreement’ in the rest of the brief. ‘EUSLA’ was the right choice.”

This conversation illustrates, first, why you shouldn’t quarrel with me while I have this nifty megaphone at Above the Law and you’ve got bupkis; I can’t possibly lose. And the conversation illustrates, second, the meaning of “digging yourself into an even deeper hole.” “EUSLA” is the wrong short-form in a brief, and your earlier mistakes don’t justify your later one . . .

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Greenberg Traurig and the TD Bank To-Do: What Happened at the Contempt Hearing?

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The “It firm” of May 2012 would appear to be Greenberg Traurig. It’s the Biglaw behemoth that’s generating the greatest buzz and the most headlines right now (not counting Dewey & LeBoeuf, which will soon find itself in bankruptcy).

Whenever there’s a big story, GT is there. In the past month, it has appeared in these pages as the possible savior of Dewey, the actual savior of Dewey’s Poland operations, and the victim of some alleged rudeness by a divorce lawyer in Texas.

And, of course, Greenberg Traurig has found itself at the center of the TD Bank controversy. Late last week, Judge Marcia Cooke held a contempt hearing, to decide whether Greenberg should be sanctioned due to a discovery debacle.

The hearing spanned two days and featured some high-powered witnesses. What happened?

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‘[Bleep] With Me And You Will Have A Huge [Bleep]hole,’ Warns Biglaw Partner

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We’ve seen some heated deposition transcripts in the past, but we didn’t know that simply scheduling a deposition could get so nasty. Clearly, we’ve never practiced in Texas, a place where Biglaw lawyers occasionally have to contend with “pansy” opposing counsel.

And, you know, have sanctions sought against them for their allegedly inappropriate email correspondence.

We’ve got a fun one today, folks. A partner at Cozen O’Connor in Dallas sent a string of allegedly abusive emails to opposing counsel when the lawyers couldn’t agree on a schedule for depositions. And we know all this because the emails are part of the record in the motion to sanction the Cozen partner.

UPDATE (5/17/2012, 11 AM): We’ve added a link to the full motion for sanctions, after the jump.

Actually, make that former partner. Keep reading, to find out what may have led to the partner’s departure from the firm….

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Inside Straight: Breakfast With Easterbrook

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At a breakfast last week, the Seventh Circuit Bar Association learned the true meaning of going “from the sublime to the ridiculous”: As Judge Frank Easterbrook took his seat, I approached the lectern.

I won’t burden you with the subject of my remarks (regular readers of this column could probably guess), but I’ll share the sublime. Judge Easterbrook said one thing, and he failed to mention another topic that he often raises.

Judge Easterbrook explained that, as a young lawyer, he had sent a brief to the Third Circuit for filing. The clerk rejected the brief and mailed it back. Easterbrook called, and the clerk’s office explained that it had rejected the brief because the back cover was the wrong shade of blue — a shade specified by an unwritten local rule. Easterbrook asked if there were any other unwritten rules, and the clerk said he wasn’t sure. Easterbrook mailed a revised version of the brief, which the clerk’s office again rejected — this time for violating a different unwritten local rule. On the third try, the clerk’s office finally accepted the brief. Easterbrook swore that, if he were ever the chief judge of a circuit, all of the rules would be in writing. Easterbrook then told the assembled crowd that (1) the Seventh Circuit’s written rules are fairly comprehensive and (2) the clerk’s office is extremely helpful if you call for advice, so there’s no longer an excuse for not complying with appellate local rules.

Judge Easterbrook last week chose not to discuss a different subject. One of the other folks who attended the breakfast meeting told me that the judge often raises this in his talks . . .

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Where My Boies At? Some Wonder About April Bonuses at Boies Schiller

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Over the past few weeks, we’ve heard some surprising rumblings of discontent from Boies Schiller. Why do we say “surprising”? Because the complaints have been about compensation, which is typically something that BSF lawyers never complain about.

Boies Schiller, the litigation powerhouse founded by the legendary David Boies, is an amazing firm. Its lawyers work on some of the biggest and most important cases of our time, and their compensation reflects that. In addition to paying above-market base salaries — the BSF scale starts at $174,000 — the firm pays bonuses that blow the NYC market out of the water.

In recent years, Boies has made two bonus payments to associates, one in December and one in April. But this year, April came and went, and many lawyers did not receive any payout. Of those who did receive payments, many were surprised at the small size.

So what happened? Did the relative cheapness of the disappointing spring bonuses at Sullivan & Cromwell trickle down (or up) to Boies Schiller? Let’s discuss….

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Dewey Know Where the Firm Leaders Are Going? Heads of Departments Head for the Exits

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Partner departures from the fast-sinking Dewey & LeBoeuf have reached a point where it’s difficult to track them in real time. We’ll focus our coverage on the biggest defections. There are multiple other resources for monitoring all the moves, the latest being the Wall Street Journal’s interactive graphic. (Similar trackers are available from Am Law Daily and Thomson Reuters.)

Last week, an internal memo gave Dewey partners the green light to consider “alternative opportunities” with other law firms. Many partners have availed themselves of that permission, with dozens of partners leaving the firm since the memo’s issuance. According to Thomson Reuters, about 150 of Dewey’s 300 partners have resigned since the start of 2012.

And now one of Dewey’s leaders — the chair of the firm’s Global Litigation Department, and a member of the multi-partner Office of the Chairman — is departing. Where is he going?

As usual, various UPDATES — including news of another departure by a department head and Chairman’s Office member, and additional details of litigators on the move — after the jump.

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Dewey Know When LeBoeuf Is Cooked? When Associates Are Laid Off En Masse

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Last night, when we reported the news of secretarial staff layoffs at Dewey & LeBoeuf, we mentioned a prediction of additional layoffs today — i.e., Tuesday — or later in the week. That prediction has already come to pass — like so many predictions about Dewey, sadly.

Last night, they came for the secretaries. This time, they’ve come for the associates….

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Alleged Spammers Respond to Twitter Lawsuit: We Are Not the Spammers You’re Looking For

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About a month ago, we wrote about an interesting lawsuit that Twitter filed against the allegedly “most aggressive” Twitter spammers. The social media giant took action against companies with goofy names, such as TweetAttacks, TweetAdder, and TweetBuddy.

At least one of the defendants, Skootle, the company that developed TweetAdder, is fighting back against Twitter’s allegations. The company filed a response brief on Friday and is represented by none other than one of Above the Law’s own regular columnists.

Keep reading to see Skootle’s brief and learn which ATL columnist is helming the defense…

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Inside Straight: Why Are Elections Like E-Discovery?

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For a couple of centuries, we thought that American elections were precise: People voted; the government counted each vote; we knew which candidate received how many votes.

In the year 2000, we learned that elections are approximations. Votes are miscounted; chads dangle; we don’t in fact know precisely who received how many votes. Elections are a human process after all, and they can’t bear the weight when we insist on precision within the margin of error.

So, too, with litigation. I recently spoke to one of our outside litigators who had seemingly vanished from the face of the earth for several weeks. He told me that one of his clients had run into a now-typical e-discovery disaster: His client had overlooked some documents; a computer system had automatically deleted some other documents; when the client corrected the situation, it did so imperfectly; the judge (who came from a government background and had no experience in private civil litigation) was quick to spy “bad faith.” Why, this outside lawyer asked, don’t judges appreciate the difficulties presented by e-discovery?

My thesis (for today, anyway) is that e-discovery is like elections: It’s an approximation, and participants in litigation (parties, counsel, courts) should understand that it may not bear the weight when the judicial system insists on precision within the margin of error . . . .

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