A Guide on Defending Depositions

January 9, 2016

Believe it or not my most popular blog post is “How to Defend a Deposition.” It wasn’t meant to be a comprehensive guide on defending depositions, but mostly commentary. People looking for how to defend a deposition seem to find it, but it doesn’t contain a lot of practical or substantive information.

Over the last few years, I’ve developed a set of talking points and a checklist that I go over with my witness prior to being deposed. What I do is print out two copies, review it with the client, and then make them re-read it at home so they don’t forget what we’ve talked about.

It’s not a substitute for asking your client about the specific facts of the case and your ability to polish the testimony. However, it will give a client the basics. (For a more in-depth read on depositions, I recommend D. Shane Read’s “Winning At Deposition.”)

Without further ado – here ya go. How to Defend a Deposition.

Don’t say I never did anything nice for you.

Oh, and this is how not to defend a deposition…

 


Can Lawyers Get Away With Anything? Court Declares the Dragonetti Act Unconstitutional

December 26, 2015

Generally, Pennsylvania attorneys’ actions are governed by the Pennsylvania Rules of Professional Conduct. However, if an attorney abuses process by filing and maintaining a lawsuit that was either grossly negligent or without probable cause, the attorney can also be held liable in a civil court under what’s known as the Dragonetti Act, 42 Pa. C.S.A. § 8351.

The standard to hold an attorney liable is high. Not only does one have to file and maintain a lawsuit that was either grossly negligent or without probable cause, but it also has to terminate favorably on the merits. This means you can go through years of frivolous litigation with little to no recourse. More often than not, litigants get burned out from incurring legal fees, and simply settle the case rather than take a chance on recovering their fees in a Dragonetti Action.

Nevertheless, and despite it’s high burdens, the Dragonetti Act is particularly important because Pennsylvania does not have an anti-SLAPP statute.

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Why I Hope You Get Sued For Copyright Infringement – A Response to the EFF on Maximum Statutory Damages

February 23, 2015

It’s Monday morning. Time to get pumped for the day. I click on my Pandora icon and a song comes on. I love Pandora One. It costs me about $50 a year, but I can stream music all day. At the gym, my living room, anywhere.

This song sounds good… Geometer by Slidecamp. Never heard of these guys before, but I can dig it. Let’s see if they’re on iTunes. Awesome. The entire album is available for exactly $7.92. That’s about two cups of coffee. I’ll bite.

BOOM – now the entire album is now on my iPad, my iPod, and my computer. I can listen to the song I want on repeat. Sweet. Gonna be a good day at the gym today.

For a second, I can’t help but think back to when I was a kid. There were two ways to listen to music – tapes and CDs. CDs sounded better, but you couldn’t take them into the gym because it skips. So you had to use tapes for any type of workout, and then listen to CDs in your house. After awhile, the CDs would get banged up, scratched, and useless. I think I bought Pearl Jam – Ten about ten times. To get a CD, you had to drive to Sam Goody and buy the entire album when all you wanted was one song. My bedroom had CDs spewed all over the place at any given time. And damn, I left my tape player on the bus again. Hopefully Ms. Gomez found it. It’s got my Green Day tape in there.

My how things have changed since then. Now any content I want is available at the click of a finger through Amazon, iTunes, or often directly from the producer’s website. It’s backed up in the cloud. MP3s don’t skip, and all the music goes to all your devices. And it gets better – movies, software, games, you name it, available in one click. No more braving the mall, no more Sam Goody, no more Electronics Boutique. Everything you want is available right here, right now, and for a fraction of what it used to cost. and if I break my computer I just buy a new one and all my music is back.

Welcome to the new millennium.

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Winning Ugly

June 18, 2014

Judge Papov looked pissed.

“You’re really going to instruct your client not to answer the question and waste everyone’s time, Mr. Rushie?”
“Judge, you’re not giving me much of a choice here…”

The judge didn’t even bother to hear argument. He looked at me, looked at my older adversary, and made a decision as soon as we reached the podium.

A week ago I had instructed my client not to answer a question in a deposition because it called for privileged information. The other side filed a motion to compel a response.

Before coming to court I had done the research and written a brief on the issue, confirming that my instruction not to answer was appropriate. No judge in their right mind would force my client to divulge privileged information with 5th Amendment implications, especially when the case law was this clear, right?

Of course, this was discovery court, where the dreams of young lawyers go to die. When it came to justice or convenience, convenience always seemed to win out. At one point the judge mentioned “If you don’t like my decisions, maybe you should work out your disputes before hand.”

As the judge glared down, I think this was the last place in the world I wanted to be. It was 85 degrees, and was packed to the brim with dozens of lawyers hoping to be heard quickly and get out. I waited over two hours to be called. Until my hearing, the judge had been moving through his docket quickly, mostly making decisions that seemed almost arbitrary. For a brief second, pressed shirt now drenched with sweat, I pictured myself laying on a beach somewhere drinking a piña colada. I could hear the ocean.

Judge Papov brought me back to reality and bellowed, “Mr. Rushie, I told you once, and I will not tell you again. Instruct your client to answer the question. I don’t have all day.”
Gary turned and whispered in my ear. “We can’t give them that information, right? You gotta fight for me…” Gary was right.

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Smokey the Cat

January 5, 2014

“Jordan, have you ever done an eviction before?” my boss James asked me. I had been working for a small firm in suburban Pennsylvania for about three years now, and was beginning to hit my stride as a lawyer. James was letting me handle files from start to finish with more regularity.
“Nope. But I’m sure it’s not rocket science. Just give me the file, old man,” I said with a grin. “This one sounds boring.”

The case was simple enough. A woman named Agnes was renting a house from one of James’s biggest clients. She hadn’t paid her rent in a long, long time. The client decided he didn’t want her living there anymore. Too easy, or so I thought.

I drove to the courthouse that day and filed the paperwork. A few weeks later I had a default judgment and a writ of possession, meaning I could have the constables remove the tenant with force, if necessary. The constable posted notice on the house, and we made arrangements for the eviction. Again, too easy. Chalk this up as another win.

“How is the eviction case coming along, Jordan?” James asked me a few weeks later.
“Great! We got a default judgment. I’m going to the house tomorrow morning to remove her. Next time consider giving me an interesting assignment, old man,” I said laughing.
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Talking Torrents: Some Thoughts on Prosecuting and Defending Bittorrent Cases

June 16, 2013

600px-US-CopyrightOffice-SealMany of you have heard of bittorrent litigation by now. In short, copyright holders will sue a group of people sharing their work on bittorrent. Often the lawsuits involve pornographic movies. Many of these lawsuits also involve large amounts of defendants, e.g., Media Company v. Does 1-50, which has lead to significant amounts of criticism. This month I had the pleasure of defending the first ever bittorent case to ever see the inside of a courtroom in the Bellwether Trial – Malibu Media v. Does 1, 13, and 16.

When it comes to the nuts and bolts of litigating bittorrent cases, there is a popular narrative on the internet. It goes something like this: all the cases are a mass extortion scheme, the people accused were picked out of a hat, no one pirates anything on the internet, nothing could ever be proven in court, and if you just fight them a little bit these guys will run away and probably get sanctioned like Prenda Law.

If you read the internet, you would think everyone who gets sued in a torrent case is an unsuspecting victim forced to settle because it’s the cheaper route. And it doesn’t matter because none of theses case could ever be taken to trial anyway.

I disagree, and I think there is a lot of untrue information out there on the internet. This is my two cents, take it for what it’s worth…

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How to Defend a Deposition – Don’t Just Show Up and Play Lawyer

April 16, 2013
Uh oh. The other side is wearing a suit and saying "objection." They must be for real.

Uh oh. The other side is wearing a suit and saying “objection” a lot. They must be for real.

[Editor’s Note: If you’re looking for my guide on defending depositions, it’s here.]

Yesterday Chris Bradley wrote a piece about how to defend a deposition. Advice? Just show up. Maybe wear a suit. And if you feel like it make an objection, but do it in a really lawyerly way. The other side will respect the fact that you’re there and put on a suit, and won’t take advantage of your witness.

Easy, right?

Errr… not so fast…

When it comes to clients, it takes more than just showing up and wearing a suit. What bothered me about this particular article is Chris decided to fake it with real clients. See, Sybil Dunlop wrote a piece last week about her “motion in lemonade“, which was funny. Why was it funny? Because it’s okay to mess up or puff yourself up before a lawyer who is supervising you. You’ll look dumb, but it won’t hurt anything except your ego.

However, that logic does not apply when you’re the attorney in charge. It is not okay to be a pretend lawyer with it comes to  clients.

You are either competent to handle an issue or you’re not. In Chris’s case, he may not have been competent to handle the issue but went ahead and decided to go ahead and fake it anyway, thinking that “showing up” was enough to do his client right.

That can get you into trouble. Because you know what’s worse than making a big mistake in a deposition? Making that mistake because your lawyer didn’t give you good advice. That can get both you, and your client, into serious trouble.

Showing up is never enough, especially when it comes to defending depositions.

So, let’s take a look at why this is awful, awful advice to a young lawyer. Because depositions are very, very important.

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