Quote of the Day - As bright and brilliant and as good a lawyer as Judge [now Chief Justice] Roberts was, I asked him - he'd never taken a deposition, he'd never picked a jury, never tried a case. He never tried a case. She has. We need people like that who have real-life experiences.
My First Deposition
Well, not mine - I've been practicing long enough that I actually don't remember my first deposition. In one of my cases, however, today was the first deposition for a young associate in opposing counsel's firm. Today's depos were not going to make or break the case, and they were each only about an hour to an hour-and-a-half long.
The lead opposing counsel called me prior to the start of the depos to ask me to "play fair" and not take advantage of a neophyte. It was a cordial call, with my agreement to do so as long as it didn't prejudice my client.
But I'm getting ahead of myself.
The young associate did a fine job, and afterward had the foresight to ask for my evaluation of her performance. I've taken a few depos in my time, so I'm somewhat qualified to offer an opinion. There were two major missteps in the way she asked questions.
First, she read her questions from her outline - virtually never strayed from the written questions. Second, she failed to ask the cross-examination questions. Let me explain.
For those who have both taken a number of depositions and gone to trial, you'll understand the second point. For those who never get to trial, it may seem difficult to get past the first point.
After the written discovery in a case is exchanged between the parties (as was the case here), the lawyers usually set the depositions of the other party to explore the case further. In a deposition, it's a rare event that the questions and the answers remain "on script" according to the asking attorney's outline. Typically more information comes up, which requires the attorney to stray from the outline and follow up on the newly-offered information. To remain on-task and on-outline misses the opportunity to learn more about your opponent's case.
More important, however, is to understand your case well enough to ask the same questions in the depo that you intend to ask in the trial. That way, you get the opposing party committed to a line of answers. When time for the trial rolls around, you can expect those same answers and at the same time be prepared to impeach that witness if those earlier answers change at trial. It's an effective technique to destroy a witness's credibility before a jury with changed answers from an earlier deposition - as long as the questions and answers go to one of the pivotal issues in the case.
Too many times lawyers miss the opportunity in a deposition to ask the cross-examination questions. It becomes apparent only after you've done several trials and recognized the missed opportunities in depositions.
But there's one young lawyer who learned that lesson early on - at least for her next trial.
Court Rules Party Cannot Record Lis Pendens In California To Notice Action In Another State
We record a lis pendens (Latin for "action pending") in the county where a lawsuit is filed to put the world on notice that there's a lawsuit pending over the ownership of real property - or at least some dispute over the land. Say, for example, Bob owns a house in Orange County, California, and you entered into an agreement to buy the house from Bob, and put down a 25% deposit in escrow. Bob gets cold feet and backs out, but refuses to return your escrow deposit claiming it was an option to purchase, and you were the one that backed out.
Beyond the fact that we have a real mess on our hands, you file a lawsuit in Orange County, California and then elect to record a lis pendens in Orange County to let anyone else know about the dispute, especially Suzy, who is thinking about buying Bob's house. You sue to force Bob to sell his house to you (an action for specific performance) or, alternatively, the return of your 25% deposit. So far so good. You have a dispute over real property, and under California Code of Civil Procedure section 405.20, you're entitled to record the lis pendens.
Now let's add one little twist to the story. [This 'little twist" is just like the Socratic method taught in law school]. Let's say that instead you entered into the contract to buy Bob's California house while you were on vacation with Bob in Florida, and you live in Florida. So instead of filing your lawsuit in California, you file it in Florida.
To follow the requirements of the lis pendens statute, however, you record the lis pendens in Orange County, California, letting everyone in the world (including Suzy) that you've got a lawsuit pending in Florida.
Still sounds good?
Not so fast there, bucko. Although Bob's property is in California, your lawsuit is in Florida. So, Bob filed a motion to expunge your lis pendens, and the court granted it. You then appealed, saying, "wait a minute, the statute doesn't say anything about out-of-state actions." Until a few days ago, no one knew whether you had the right to record your lis pendens in California. But if you remember the foreshadowing in the headline, you now know you can't. That's right - you have to file your lawsuit in the same county where you intend to record the lis pendens, not in another state.
Although the Superior Court granted Bob's motion to expunge your lis pendens, however, the Court should not have. It should have simply struck the Notice of Lis Pendens about the action in Florida.
One more loophole plugged up.
Now Wait, Where Did I Put That Cell Phone?
Honey, Why Does This Internet Site Have Those Photos You Took Of Me?
Lots of people lose cell phones, and lots of those cell phones have cameras. Some of those cell phones with cameras even have photos saved on them, surprisingly enough. When those cell phones get lost, some end up in the hands of employees, say employees at a restaurant.
Let's say, for example, that one of those lost cell phones had some photographs of your wife. Nude photos, in fact. And the last place you can remember where you had your phone was right after that Big Mac and fries.
The next thing you know, your wife is a bit upset.
Over the fact that those nude photos you had on your cell phone are now on an Internet website, supposedly frequented by "perverts and pedophiles," according to this Complaint.
Let's get to the newspaper questions: When Phillip Sherman of Arkansas lost his cell phone at a McDonald's on his way home, the manager of the fast-food restaurant called his wife Tina to let her know that he had found the phone, would turn it off and set it aside for safekeeping. Tina promised her husband would drop by the next day and pick it up.
Then, mysteriously, Tina received a cryptic text message with the address of a website and perhaps some suggestive comments. She went to the website, and there she was in all her glory.
Neither she nor Phillip were none too pleased. (Do you think that's too many negatives in one sentence?) In any event, the next step - as you might have guessed - was to the lawyer's office, who promptly filed a $3 million lawsuit against McDonald's for negligent failure to "protect and secure" the cell phone, in what some have claimed to be the first such lawsuit over a cell phone.
What is your privacy worth?
Lawyer 2 Lawyer Internet Radio DiversifiesPeople are making a difference in the legal community. The American Bar Association Commission on Racial and Ethnic Diversity in the Profession recently announced their selection of judges, lawyers, a legislator and a law professor to receive the 2009 Spirit of Excellence Awards, honoring efforts to promote a more diverse legal profession. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as wewelcome Attorney Fred Alvarez, chair of the ABA Commission on Opportunities for Racial and Ethnic Minorities in the Profession and award recipients Attorney Richard A. Soden, of counsel to the Boston office of the national law firm of Goodwin Procter LLP and Justice Dan Sosa Jr., retired Justice of the New Mexico Supreme Court, to talk about diversity in the legal profession. We will discuss the progress over the years, how they have overcome barriers and made opportunities available to others and how they encourage young people to pursue law as a career.
MIPTC Is Back; The Book Is In The Hopper
Regular readers will have noticed that MIPTC hasn't been frequently updated over the last month or so, and will likewise remember MIPTC has been busy working on a second book, Bad Decisions? 10 Famous Trials That Changed History. As a consquence, together with my regular practice of law, it pretty much took up most of the rest of my available writing time, unfortunately to the exclusion of this blog.
But Kaplan Publishing in New York now has the manuscript, all 155,000 words of it, and MIPTC is back. We'll see you much more frequently and thank you for your continued loyalty.
The new book comes out in March 2009. Stay tuned.
Lawyer 2 Lawyer Internet Radio Swims Across the PondThe failing economy is having an impact on law firms and not just in the U.S. Firms are cutting staff, scrapping bonuses and some law firms are even collapsing. Across the pond in the UK, law firms are facing similar troubles. Please join me and my fellow Law.com blogger and co-host, Robert Ambrogi, as we welcome Ronnie Fox, Principal of the UK law firm Fox and Jonathan Fagan, Solicitor and Managing Director of Ten Percent Legal Recruitment, also in the UK, to talk about how the present economic crisis is affecting not only law firms here, but firms in the UK. They will discuss the obstacles that UK law firms face and what needs to be done to get through these hard times.
How to Get SuedMost “How To” articles tell you how to avoid getting sued. For those who like living on the edge, here’s the other side of the coin, how you can get sued in 10 easy steps.
1. Take more than your share or provide less than you promised.
2. Blame it on someone else.
3. Ignore telephone calls.
4. Fail to respond to letters.
5. Tell them it’s their fault.
6. Rationalize your behavior.
7. Get angry in response to reasonable requests.
8. Delegate your subordinates to deal with it, and don’t give them any authority.
9. Trump up your own claims to offset their claims.
10. Tell your friends about how they took advantage of you.
Of course this list is endless, but you get the idea. These generic statements can apply across the board to practically any business. In the employment industry, one company identified 10 ways for employers to get sued.
If you want to avoid getting sued, treat others fairly and solve their problems. That method creates goodwill, and increases the value of your business. If you provide more than you’re paid for, you create goodwill. Plus, it keeps you from having to hire a lawyer, which not only saves you money, but makes money for you too.
Lawyer 2 Lawyer Internet Radio Inspect the Possibility of an Automaker BailoutBailout or bankruptcy for the U.S. automakers to the tune of $25 billion? Please join my fellow Law. com blogger and co-host Bob Ambrogi as he welcomes experts Professor Eugene F. Fama, the Robert R. McCormick Distinguished Service Professor of Finance at the University of Chicago Booth School of Business, Attorney Andrew Z. Schwartz, head of the Bankruptcy and Restructuring Group at Foley Hoag LLP and Attorney Lisa C. Wood, Partner and Co-Chair of Securities and Corporate Disputes Practice at Foley Hoag LLP to discuss the economic and legal options and consequences.