Trials

An en banc panel of the Ninth Circuit dropped one-liners, harsh mockery, and severe realkeeping for a little over an hour, and it’s entirely watchable because it’s so damn funny.

A federal prosecutor in California inserted a “fact” into his rebuttal that wasn’t in the record.

Overzealous prosecutor lies to get a conviction? To channel Ralph Wiggum, “that’s unpossible.” Now I can take off my old defense lawyer hat.

After the trial judge responded to these charges by shrugging his shoulders, the case wound its way to an en banc hearing of the Ninth Circuit, where a bevy of judges (including Chief Judge Alex Kozinski) rips into the government for sandbagging the defense out of a fair trial.

And it’s all on video….

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Sometimes, the conventional wisdom is dangerously wrong.

Today’s conventional wisdom is this: “Never do any direct examination of your own witnesses at [discovery] depositions. These witnesses are under your control. If opposing counsel tries to use the deposition testimony against you in a motion, you’ll just get an affidavit from your witness and fix the problem. If opposing counsel tries to use the bad testimony against you at trial, you’ll just call the witness live at trial, and you’ll fix any issues with the testimony there. Doing direct examination during the deposition just gives opposing counsel advance notice of the way you’ll fix the testimony later.”

(Some folks will admit to an exception or two to this rule. If the witness said “yes” and meant “no,” then maybe you have to fix that on the record at the deposition. If the witness is 95 years old and has a bad cough, then maybe you should do a direct examination during the deposition. But those exceptions are typically few and far between.)

If you haven’t yet heard this conventional wisdom, then either (1) you’re not a litigator or (2) you haven’t yet defended your first deposition of a person under your control.

I’m here today to tell you why this conventional wisdom is often wrong. . . .

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On Monday, a jury convicted Larry Williams of first-degree manslaughter and his wife Carri of both manslaughter and homicide by abuse. Both now face possible life in prison.

Larry and Carri Williams were typical suburban parents who approached every parenting decision by asking, “WWJD?”

Except Larry and Carri were convinced that what Jesus would do is mercilessly beat and ultimately kill a defenseless girl.

While, obviously, the actual scripture is open to interpretation, what I take away from it is that Jesus would actually not do any of these things.

Unfortunately, Larry and Carri are not alone in their screwball religious interpretation, and while the media (to the extent it has covered the case at all) is focused on the verdict and looming sentence, the unasked legal question this case raises is how people like this are allowed to adopt children in the first place…

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* Earlier this week, Verizon faced off against the Federal Communications Commission in a net neutrality battle royal before the D.C. Circuit. Next time, make FiOS work before trying to get a do-over on the way the internet runs. [New York Times]

* “I see my job as an air traffic controller. And I see an unending line of airplanes.” Federal judges are buckling under the heavy weight of their caseloads, and from the sound of it, they’re not at all happy about the situation. [National Law Journal (sub. req.)]

* Which Biglaw firms strike the most fear into the hearts of their opponents when it comes to litigation? One firm got the boot from last year’s list, and we’ll have more on this later today. [Law360 (sub. req.)]

* Duane Morris is the first U.S. firm to open an office in Myanmar on some prime real estate. Be jealous of their associates as they bask in the splendor of its beautiful architecture. [Philadelphia Business Journal]

* A trio of Quinn Emanuel partners, including John Quinn himself, teamed up to open a high-class sushi joint in L.A. If he waits tables, he’ll definitely need someone to break a hundred. [Am Law Daily (sub. req.)]

* The Sixth Circuit affirmed the dismissal of a former student’s suit against Thomas M. Cooley Law School, and now he’ll have to live with shame for all eternity after being branded a cheater. [Law360 (sub. req.)]

* Strippers aren’t independent contractors, they’re employees entitled to minimum wage, says a judge. Taking off their clothes for only $7.25 an hour will do wonders for their self-esteem. [New York Daily News]

* Lady Gaga is being taken to trial over the wage-and-hour lawsuit filed by her former personal assistant. We wonder if the pop star will be as foul-mouthed on the stand as she was in her deposition. [ABC News]

Words are like bullets.

There’s a great episode of 30 Rock where Twofer (the black character who went to Harvard) gets offended when Tracy Morgan (the black character who did not go to Harvard) says “the n-word” to him, colloquially, as black people allegedly say to each other based on movies and music. Twofer threatens to sue Tracy Morgan for workplace harassment, while Tracy argues that it’s okay for black people to use the word. Then there’s a great, great scene where Tina Fey, Alec Baldwin, and Tracy Morgan try to get Twofer to say the word too.

It doesn’t go well. He says it, Morgan threatens to punch him, and Fey says, “It just sounds so hateful coming from you.” The scene pretty much explains why I personally don’t use the word. I don’t say it around white people, I don’t say it to other black people, I don’t use it when I’m getting a haircut, and I don’t use it around the dinner table with my family at Thanksgiving. It’s not a word that I can “pull off” (I can pull it off in writing when I use it ironically, I think), and I’m totally okay with that.

Don’t get me wrong, I’m not one of those people who sees intense hypocrisy in the fact that some black people can and do pull it off while no white person (outside of Louie C.K. and maybe Bill Maher) is allowed to try. White people got a 400-year head start in the New World, and black people can deploy an extra noun when listening to Jay-Z. There are greater tragedies.

But the N-word is not a “professional” word, and I don’t think it should be used in that context. It doesn’t matter if you are black or white or from whatever racist planet Rush Limbaugh is from. At the point where you are using the n-word to talk to your employees, you need to help yourself to a thesaurus.

Apparently, there’s a jury of my peers who agrees with me…

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The eyes of the law in Idaho.

* If Biglaw firms wants to get back into a financial sweet spot like in their days of yore, they had better get in on these billion-dollar international arbitrations while the getting is good. [DealBook / New York Times]

* Women lawyers, please take note: your future depends on it. Apparently the key to making partner in Biglaw is to get the backing of general counsel at big money corporate clients as a gender. [Corporate Counsel]

* ¡Ay dios mío! ¡Escándalo! Holland & Knight yoinked 10 attorneys, including three partners, right out from under Chadbourne & Parke’s nose to open up its new Mexico City office. [South Florida Business Journal]

* “If we actually got another million dollars going forward to spend on something, is the highest and best use to produce attorneys?” Even in a flyover state like Idaho, the answer to that question is a resounding yes when it comes to law school expansion. [Spokesman-Review]

* “A jurisprudence of ‘don’t ask, don’t tell’ does not properly safeguard [a defendant's rights].” California Justice Goodwin Liu is raging against policies on race-based peremptory jury challenges. [The Recorder]

* “I’ve been doing Paula Deen in a strongly metaphorical sense.” The magnate of marmalade’s case may be settled, but that doesn’t mean sanctions have been taken off the table. [Courthouse News Service]

* The hefty price of killing? Following his acquittal in the death of Trayvon Martin, George Zimmerman is now asking Florida to pay for his legal expenses, to the tune of $200,000 – $300,000. [Orlando Sentinel]

* Should Eliot Spitzer have faced harsher sanctions for pounding hookers? It’s a pretty interesting question that we can all ponder for the next four years after Spitzer demolishes Scott Stringer in the Comptroller race. [Wise Law]

* Homeowners were forced to pay hundreds in legal charges for lawsuits that don’t really exist. Stay classy foreclosure practices. [Overlawyered]

* Blackacre: The Poem. [Poetic Justice]

* The New York State Bar says lawyers have a reasonable expectation of privacy if they use Gmail. Google disagrees. [3 Geeks and a Law Blog]

* A round-up of law school officials facing discipline for deceitful advertising. Take note deans. [TaxProf Blog]

* A woman is indicted for taking her 13-year-old daughter to get an abortion. And it’s not even Alabama. [Wild About Trial]

* Lawyer and witness repeatedly flip each other off during cross. Video after the jump…

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Following last month’s verdict, Bradley Manning has now been sentenced.

A military judge found the Army Private First Class — on trial for leaking documents to WikiLeaks — guilty of multiple espionage charges last month, though acquitted Manning on the most serious “we get to kill you now” charge of aiding the enemy.

The government sought 60 years (of a possible 90) in prison.

It fell a tad short…

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Yeah, yeah: That title caught your eye.

I thought about titling this column “Litigation Aphorisms,” but who the heck would have read it?

So I went instead with the first of three critical things you should know about litigation, all of which I learned from Neil Falconer when I practiced at the 20-lawyer firm of Steinhart & Falconer in San Francisco back in the 1980s. (I also dedicated The Curmudgeon’s Guide to Neil. He wasn’t a “mentor”; he just accidentally taught young lawyers by osmosis what it meant to be a lawyer.)

Neil’s first aphorism was this: “Never tell a small child not to stick peanuts up his nose.”

Why does that matter?

Or maybe I should start with a more basic question: What the heck does that mean?

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* The speed (or lack thereof) of justice: The DOJ filed suit against Bank of America, alleging that the bank defrauded mortgage-backed securities investors in 2008. [DealBook / New York Times]

* Sri Srinivasan, the newest member of the D.C. Circuit’s bench, is getting ready to hear his first arguments, while litigants try to commit the spelling of his last name to memory. [Legal Times]

* The LSAT is not to blame for the dearth of minority enrollment in law schools, said a UVA Law professor, and then a Cooley Law professor had to swoop in to slap him down. [National Law Journal]

* After teaming up with Touro, the University of Central Florida is working with Barry on an accelerated degree program. The dean of FAMU is upset. Don’t worry, you’ll get your turn, too. [Orlando Sentinel]

* New Jersey is in no rush to legalize gay marriage. To support their views, officials point out that people with civil unions are just like married couples — except for the married part. [New Jersey Law Journal]

* Meanwhile, a judge in Illinois will decide whether she’ll dismiss a challenge to the state’s gay marriage ban by the end of September. In her defense, early fall is a great time for a wedding. [Daily Herald]

* Belvin Perry, the judge who presided over the Casey Anthony murder trial, may be getting his own Judge Judy-esque television show. Oh, Flori-duh, you never, ever cease to entertain us. [MSN News]

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