Category Archives: Litigation

October Surprise or Legitimate Lawsuit?

WinterPride: Selisse, Jackie, Peter Corroon
Image of Mayor Peter Corroon via Wikipedia

It seems James Evans, former Salt Lake County Republican Party Chair has taken a Latin phrase seriously: In Ius Voco Spurius.

Robert Gehrke lays out how Evans is accusing Utah gubernatorial candidate and Salt Lake County mayor Peter Corroon of violating campaign finance laws:

The lawsuit, filed by former county GOP Chairman James Evans, alleges that Corroon raised nearly $300,000 that exceeded the contribution limits that he signed into law as county mayor.

Specifically, those county rules limit contributions to $2,000 per person unless the donor is a contractor, in which case they are limited to $100 per election cycle. The objective was to prevent the appearance that contractors were buying influence, something that Corroon insinuated has gone on in the Herbert administration.

But Corroon established the Corroon Leadership Political Action Committee and has received dozens of contributions that exceed the county limits, some of them from county contractors, while he continues to serve as mayor.

The irony is not lost on me. After promising a clean campaign, the Mayor has been thrashing at Governor Gary Herbert for almost the same thing: receiving, and soliciting, campaign donations from groups doing business with the state, specifically releasing a “Governor for $ale” memorandum detailing his criticisms of the Governor.

The problem with Evans’ suit? He’s suing under a county ordinance that only limits contributions to county candidates, not state candidates. Under Salt Lake’s Municipal code 2.72A.104, campaigns contributions are limited, but only to county candidates. Even if the county wanted to limit what contributions candidates for offices outside of the county received, it cannot for lack of jurisdiction.

In my estimation, then, this falls under the “October Surprise” category more than the “legitimate lawsuit” group.

Whether or not Peter Corroon is playing nice is another thing altogether…

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Memorable Depositions

The ABA Journal has asked readers what are some of the memorable depositions they’ve been in over the years.  I had a good laugh at a few of them.

“Andythelawyer” remembered a depo where the client shared more than his attorneys thought appropriate:

A couple of decades ago I was representing one of many directors of a failed savings and loan in a massive consolidated shareholder securities class action.  The deposition witness was the S&L’s former president—a little old guy with a Czech accent worth about $750 million (which was real money back then).  The deposition was taken in a downtown Los Angeles law firm’s conference with 40 people—mostly lawyers, including 4 representing the witness.

After an hour one question (I don’t recall what) prompted defense counsel to clamp their hands over the witness’s mouth and drag him down into a huddle.  After two minutes of murmuring his little bald head popped up, chirping: “On the advice of counsel, I don’t remember.”

Pandemonium ensued for the next 15 minutes.

“Jon Hyman” had me groaning:

The case began as a sexual harassment EEOC charge alleging that a corporate executive displayed pornographic images on his computer to a female subordinate. Everyone at the company denied the photos existed. In fact, the executive had a plausible explanation—the charging party was a disgruntled, terminated employee who may have accidentally received an email forward of a dirty joke, and was exaggerating that one isolated incident to extort money through a bogus claim. I responded accordingly in the company’s position statement to the EEOC, which found no probable cause.

Flash forward six months. The lawyer for the ex-employee (now a plaintiff) is deposing the same executive. Her lawyer marks the position statement as Exhibit 1, and the executive re-affirms his story. Her lawyer then marks as Exhibit 2 the discovery responses in which the company denied that any pornographic photos existed, and the executive again re-affirms his story. When her lawyer marks a manila envelope as Exhibit 3, I started to feel a pit in my stomach. When the executive opens the envelope and reveals a half-dozen pornographic photos, the pit moves up into my throat. When I realized that the photos are of the same executive cavorting with two women—whom he identified on the record as “escorts”—I just about threw up.

“Jane” remembers a court reporter distracted by a witness:

I was taking a deposition in a suburb of Cincinnatti.  The court reporter had travelled two hours to get there.  During the deposition, I noticed that she wasn’t typing enough, based on my experience with court reporters.  I asked for a readback, and she said, “You know, I didn’t get that either.”  I asked for a readback from fifteen minutes earlier, from something I had in my notes, and her recording was insufficiently accurate.  I brought her outside the room and asked if there was a problem.  She said that the witness was, “Just SO GOOD LOOKING that she couldn’t concentrate.”  I called the court reporting service, who said that it would be two hours before another reporter could be sent.  I had a deposition pending in Chicago, so couldn’t wait for that.  What we did was turn the reporter around to face the opposite direction, so she couldn’t see the witness in front of her.  Viola.  Accurate reporting.  You can’t make this stuff up.

“D.C. Toedt” remembers an attorney getting caught by surprise…by his own witness:

I represented a corporate defendant in a patent infringement lawsuit.  I was starting the deposition of a non-party witness whose testimony would be important to the plaintiff’s proof of his date of invention. I started through the usual opening questions.  Have you ever testified at a trial?  No.  Have you ever testified at a deposition?  No.  Have you ever been convicted of a crime? No.  [At this point, there was something about the witness’s demeanor ….]  Have you ever been accused of a crime?  Yes.  What crime?  Attempted murder.  When?  My trial starts next Wednesday.  Whereupon the plaintiff’s lawyer asked for a brief recess—he was caught by surprise, even though it was his own witness.

From “C,” several memorable depos:

  • Depo of plaintiff in sex harassment case where claim was that harasser co-worker had erection at boring company meeting in conference room where he was the presenter!  Plaintiff’s attorney put pencil in his pants and moved to various angles asking plaintiff to confirm the degree and angle of alleged erection on record.
  • Plaintiff answered my question with asking if I was “the devil.”
  • Plaintiff’s attorney fell asleep.  I asked Plaintiff on the record how they felt about the fact that their attorney was asleep.  “Not very good.”

“Attorney X” depoed a woman who was on the mystical side of things:

My most memorable was the woman – next-door neighbor witness to a dispute over a house fire –  who had to arrange her stones and herbs around her to create a circle of spiritual safety before beginning to testify.

“BZ” had a client who took him very literally:

I once instructed a client, a dump truck driver, to only answer the questions he was asked. The questions and answers went like this:

Q. Could you tell me your name?
A. Yes.
Q.  Will you tell me your name?
A.  Yes?
Q.  When will you tell me your name?
A.  When you ask?
Q.  Could you please tell me your name?
A.  Yes.

This went on for twenty minutes until the lawyer finally asked :  “What is your name” only to then ask:
Q.  Could you tell me your address?
A. Yes.

I did not laugh but it was hard.

And, from “MartyMar” comes my favorite:

After advising my client, a 90-year old woman in a probate case, to always read any document in its entirety opposing counsel places before her before answering the question “Have you ever seen this document before”?”, my client followed my advise to the “T”.

During her deposition, opposing counsel handed my client a 23 page trust agreement and asked her if she has ever seen the agreement before.  My client politely takes out her bifocals and begins to read each and every word on each and every page.  After about an hour and a half, my client completely read the agreement and asks opposing to repeat his question.

Q. Have you ever seen this document before?

A. No.

(Opposing counsel’s client): This is some bullshit (referring to the hour and a half it took her to read the trust agreement..just to get a “No” response).

Random calls to a P.I. attorney

Is it really this crazy to be a personal injury attorney?  Maybe I’m in the wrong industry.

For your reading entertainment, courtesy of Namby Pamby:

Caller: I got shot and I don’t know what I can do.
Me: Ok. Who shot you?
Caller: I dunno.
Me: And what exactly do you think you can do about that?
Caller: My friends told me I could sue the city.
Me: Your friends are idiots.
Caller: What?

Caller: I had surgery and the doctor made a mistake.
Me: How so?
Caller: I can’t…I can’t…
Me: You can’t what?
Caller: Ejaculate.
Me: Have you gone to a doctor about this?
Caller: No.

Caller: I slipped and I fell at a store as I walked in.
Me: Was it raining?
Caller: Yeah? What’s that gotta do with it?
Me: It’s the law in the State of Illinois [Insert legal dissertation on natural accumulation, ingress/egress, etc. here] meaning that the store isn’t legally responsible.
Caller: What do you mean? I got rights! That store has to pay for my medical bills!
Me: No, they don’t.
Caller: Then who is supposed to pay them? It’s not my fault.
Me: Actually it kinda is.
Caller: That’s some bullsh**

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It’s a dangerous world out there (on the internet)

Image representing Facebook as depicted in Cru...
Image via CrunchBase

The internet, for all the access to information and social network fun (i.e. Facebook and Twitter, among others) it provides, can be a dangerous place, especially for the unsuspecting attorney.  A colleague of mine who spends much of his career working in political consulting with candidates and elected officials has said, many times, that “once it is out there, there’s no taking it back.”  The assumption is that once something has been put up on the internet, be it video, picture or text, it is entirely possible that it will always be on the internet.  Information can be copied, cached, and printed, and then reposted on a myriad of websites and venues.  In short, once you put information  on the internet, it becomes difficult to control where it will go or how it will be used.

With this thought in mind, I recently came across an article with twelve simple tips for attorneys to help them manage their online presence.  Lawyers, in addition to the pitfalls that the average person faces on the internet, face ethical and legal obligations to clients and the court, lines in the sand that an online presence–in blogs, chat rooms, Web sites, and emails–can be crossed detrimentally if the attorney is not careful.  Originally printed in the ABA publication “Law Practice,” the article, by Web 2.0 column editor Steve Matthews and found online here,  provides some useful tips for keeping keeping clients happy, staying out of trouble, and generally safe in the online world.  While written with the legal practitioner in mind, the tips are useful to the non-legal internet users, as well.  Of those twelve, I’ve noted my favorites here, along with my comments on them.

  1. Write only what is true.  It sounds obvious, but all too often exaggeration, implication, and distortion can get the better of us, especially in the semi-anonymous world of blog comments and chat rooms.  The ABA Model Rules of Professional Conduct, adopted in most jurisdictions in whole or in part, requires under Model Rules 4.1, 7.1, and 8.4, that lawyers avoid misrepresentations, and they applies across the internet, regardless of the medium.
  2. Don’t write about clients without consent. “Ethics rules and fiduciary obligations limit what a lawyer may say about a representation without the client’s consent[,]” says Matthews. Besides, who wants their attorney saying stuff about them online, especially when that stuff may have been said in confidence (and is probably protected by client-attorney privilege).
  3. Limit investigations to publicly available information. In this case, the best example I can think of is the recent (justifiable) hubbub in Utah over the release of 1,300 names of allegedly illegal immigrants by two Department of Workforce Services employees.  While the investigation is still ongoing, it is clear that the information to produce “the List” was not made with publically available information, and that privacy laws may have been broken as a result.  Lesson: use public information, especially against a adversaries.
  4. Keep evidentiary information around. If a client puts something dumb online, the best advice is to not put anything else up, but be careful about advising what to take down, as it may violate Model Rule 3.4, especially if litigation is in process.
  5. Avoid answering legal questions. You don’t know the client, or the context, so it’s best to avoid solving their problem without appropriate in-take.
  6. Protect your own online information. A great example of this is Facebook–pay careful attention to what the public can see and adjust your privacy settings to control it as you would like it to be seen.
  7. Keep sites updated and accurate. If you have information on a law on your site, be sure to update it if the law changes.
  8. Beware what others say on your site. It’s your site, and you can be held accountable for what is said on there.  Along those same lines…
  9. Be careful what you say about others.  Remember the Golden Rule? (No, not the one about he who has the gold makes the rules, the other one.)
  10. And, most importantly: Presume everyone will know everything said or done. This brings us back to the start.  Once it’s out there on the internet, it is almost impossible to get back.

The internet is a great tool and a fun place.  But be careful out there.  The people you meet are not necessarily your friends…

(Thanks to ABA and Stem Legal Web Enterprises)

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Thinking of litigating abroad?

I don’t do much  litigation in my practice, let alone international litigation, but I did do some research while still in law school for a professor who was very interested in international arbitration.  And so it’s still just as interesting now as a practicing attorney, if just as inapplicable as it was to a 2L.  But still interesting.

As more business crosses international borders, and if you believe Thomas Friedman then you know it is only a matter of time before your business has some cross-border transactions, and any time the deal goes south, proverbially speaking, there will be the need for you to evaluate whether litigation is a viable remedy for resolving the problem.

When you do get to that point, check into the International Business Law Advisor for some tips, including this short post on how to evaluate litigating abroad.  Just a few quick points from their article:

  • The “choice-of-law clause” can be a factor but mostly has no bearing on the choice of court. A court can apply foreign laws, although it might need expert evidence.
  • It is important that any judgment obtained in one court is “recognized” by the courts of the place where you might want to enforce the judgment – which will be where the defendant has any assets. In the U.S., many states have enacted variations of the Uniform Enforcement of Foreign Judgments Act.
  • If your judgment was the subject of an arbitration, the judgment is enforceable in any country that has signed on to the New York Convention on the Recognition and Enforcement of  Foreign Arbitral Awards (over 142 countries are parties to the Convention).

And last, but perhaps the most important–if you have a choice, litigate in U.S. courts:

  • The quality of courts and local lawyers is also important. There are courts, even within the EU, that have the reputation of being susceptible to corruption and most developing-world courts are best avoided. In the U.S, the integrity and quality of the courts are generally first rate.