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(323) 652-9451 - LAThe blawg world was all abuzz recently about comments Justice Scalia made to students at a local law school in Laramie, Wyoming. When asked about the “best piece of advice” he could give to law students, he advised them not to waste time taking “frill courses.” More specifically, he said:
“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school . . . You should not waste that opportunity. Take bread and butter courses. Do not take, ‘law and women,’ do not take ‘law and poverty,’ do not take ‘law and anything.”
Some excellent posts have sprung from Scalia’s remarks. Professor Jonathan Turley, for example, pointed out that:
“My students will be better lawyers but [sic] not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s [sic] in their ability to move seamlessly from the theoretical to the doctrinal in class.”
Simple Justice blogger Scott H. Greenfield contributed at least two valid points on both sides of the controversy. On the one hand, using the example of a hypothetical class on “Law and Potted Plants,” he writes, “Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen). There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.”
On the other hand, Greenfield seems to side with Scalia that “Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who desperately want to push their personal hobbies, example of law and women abound in discussions of property law and contracts. There are no shortage of pet opportunities.”
While I think these are some great points, the question for me is whether students are really choosing “Law And . . . ” classes at the expense of bread and butter courses. In other words, is Scalia’s advice misplaced, not because “Law And . . . ” courses are valuable learning opportunities that should not be disparaged, but rather because students are not choosing between, say, a course in Evidence or Civil Procedure and “Law And Potted Plants?”
Unless things have changed in the 20 year interval since I was a law student, most of the “bread and butter” classes are completed half-way through the second year. This leaves a year and a half to take courses that, hopefully, take the rudimentary skills learned in the first year, and apply them in ways that further cements that learning. For me, it was Trial Advocacy and Appellate Advocacy. These required me to use information and skills I previously studied in Evidence and Legal Research and Writing. Somehow, though, I still had time to take other elective classes in Legal History and Employment Discrimination, which gave me perspective on our profession and spawned my interest in employment law.
So are students who are interested in “Law and Women” or “Law and Poverty” really taking these “Professor’s Hobby” courses (Scalia’s term, not mine) at the expense of courses that address core competencies? I tend to think not.
The issue I struggle with, and have written about, has to do with the dearth of practical training many students receive before they are released into a legal marketplace that suffers from declining mentoring and training opportunities. As I said here, brand new graduates who would have received practical guidance from their first law firm or government employer are increasingly left with few alternatives to opening their own law practice out of a local Starbucks just to make their student loan payments. I’ve read that at least some schools are responding to this need with more practical, clinic-oriented course offerings.
Because nobody respects a fence-sitter, I’m going to come out against Scalia’s remarks. I think that courses on Law and Women and Law and Poverty are a worthy way to spend expensive law school hours. Unlike potted plants, these subjects are topical, timely and impact the majority of the world’s population. I expect they also require students to build upon core competencies, such as research, writing, oral and written argument, in ways that ultimately produce better, more thoughtful and world-changing lawyers.
I’m not holding my breath that anyone is going to ask my best advice to law students. If they did, however, I would highly recommend intern and externships. Oh, and keep in touch with every person you meet in school!
Colleagues criticize me because, when pitching to handle a case, I don’t “sell myself” enough. It’s not just that I don’t sell my own experience or skills well enough, but also that I sometimes don’t paint an overly optimistic picture of the case. What it’s going to cost. How we’re virtually guaranteed a great outcome.
These may be valid criticisms, but I’ve always preferred the notion of being conservative about the expected outcome of a case. I also never want to be accused, at the end of a case, of having misrepresented what it will likely cost to get the desired result. I’ll admit such honesty has probably cost me business.
It turns out, though, that such honesty may be the very best thing when vying for the role of the trusted advisor. At a recent conference, I learned that, based on comments gathered from general counsel at major corporations, the perception that an outside lawyer was being honest, potentially against his/her own interests, was actually a relationship “accelerator.”
So, when do opportunities arise for outside counsel to “accelerate” their client relationship through honesty at any cost? Here are just a few:
1. “I might not be the best lawyer for this particular case (or deal),” and I know that means you may not hire me.
2. “I want to make sure you have a realistic idea what this is going to cost,” even though you might decide then not to sue or to settle instead.
3. “Your chances of winning are probably not going to improve by doing this additional discovery,” even though a scorched earth approach is vastly more profitable for me.
In addition to sleeping better at night, an incidental benefit of this kind of honesty is that, while I might not be the perfect lawyer for this particular case, or you decide not to sue this time, I know you are going to trust my judgment. That’s really what I want, to be the trusted advisor, so you’ll think of me next time, and the time after that.
Soundbite questions are a hallmark of depositions taken of Persons Most Knowledgeable (PMK aka Persons Most Qualified or PMQ) within an organization on certain topics. Here are some examples:
“Does your company, manufacturer XYZ, have ethical considerations in the design of its products?”
“Does ABC Hospital care about the safety of its patients?”
“Was it important to your company that African-American employees not be harassed because of their race?”
Of course the answer to these door-openers is an enthusiastic Yes. The problem is the inevitable follow-up:
“Then why didn’t you recall product 123 when you learned it was defective?”
“If you cared about preventing harassment, then why did you skip harassment training in 2011?”
These kinds of questions are intended to elicit soundbite responses that are, at best, only marginally relevant. But they can leave a strong negative impression with the jury if they somehow get into evidence. You can object until you are blue in the face, and chances are slim that the colloquy ever gets read to a jury, but do you want to take that chance? Even though I can’t anticipate every kind of soundbite question an opponent will ask my witness, I like to prepare her to recognize and effectively “manage” these questions.
One of the best ways to limit bad PMK or PMQ deposition testimony is to make the witness really understand the scope of his or her intended examination. For this purpose, I do not rely on the language of the deposition notice or subpoena. Rather, I typically object to the deposition notice, which is inevitably overly broad or problematic for other reasons. I then indicate, in the objection, that my client “will make a witness available who is knowledgable about . . .” This gives me some measure of control over what is going to happen in the deposition. For example, I never make a witness available to testify on ridiculously overbroad topics like “safety.” Rather, a notice asking for a witness on the “safety” of a product will get an objection promising instead a witness who is prepared to testify about “design considerations” or “testing.” If opposing counsel receives my objection and has a problem with it, I expect he/she will raise the issue and we will hash it out before the day of the deposition. Failing that, I take the position that the language of my objection governs for purposes of scope.
Now, this may seem strident. However, if push comes to shove and we need to appear before the judge, (1) I have not conceded anything and there is an opportunity to fully brief my client’s position; and (2) the burden is on the party noticing the deposition to move to compel, rather than having the burden on my client in moving for a protective order. As Denzel Washington points out, in Training Day, “The shit’s chess, it ain’t checkers.”
Since I have had some say in the scope of the witness’ examination, I want to make sure the witness knows the boundaries of this scope. After explaining this, I reinforce it by asking a series of mock deposition questions that fall just inside or outside the scope. This practice helps the witness feel comfortable asserting that the question is outside the scope of her deposition. I also teach her to listen for my objection that the question is outside the scope.
Unfortunately, while some examiners will walk away when the witness resists an invitation to give a soundbite, others are more persistent. They will ask the same question over and over until they get a response, or slightly change the question until they get an answer they think is useful. Preparing my witness for this kind of persistent examination requires consideration of my overall theme in the case. For example, if my client made a single part that was incorporated into a larger product that is claimed to be defective, my theme might be that my client made the part according to a specification. I teach the witness to restate this theme in a way that she finds comfortable, then help her to apply it in response to a variety of different questions. Again, practice through hours of mock questioning is the only way to “train” my witness how to incorporate the theme into her responses.
The most important thing is to put my witness on notice that she is likely to be asked soundbite questions. Since the questions can seem innocuous (“You care about safety, right?), and seasoned examiners know how to sandwich them in between more legitimate questions, it’s important for the witness to remain vigilant.
I’ve written about dealing with difficult or overly coaching counsel when trying to conduct a deposition. Considering that the entire purpose for taking a deposition is to gather evidence, and a coaching or otherwise difficult opposing counsel can undermine this goal, this is an important issue. Unsurprisingly, Professor McElhaney, in his excellent Litigation (aka the Bible), offers a wise strategy for dealing with these situations. In a chapter entitled “Pit-Bull Depositions,” he discusses The Wedge.* Because I cannot say it better, here’s a quote: “[T]he lawyer is coaching the witness because he is afraid of what the witness might say. That means he has not adequately prepared the witness for the deposition. It also means he is afraid you are getting close to something that might help your case or hurt his. . . . [T]here are probably better things to do than run to the judge when a lawyer coaches a witness during a deposition. One of them is to drive a wedge between the lawyer and the witness.” (Id. at 53.)
How to do this? Professor McElhaney suggests you change the dynamic of the deposition, so that the witness begins to see how her attorney is interrupting her and preventing her from telling her side of the story. The witness will likely already be irritated that her lawyer did not adequately prepare her for the kinds of questions you are asking (or perhaps did not prepare her at all). Capitalize on this dynamic by encouraging the witness to finish telling her story. In addition to the above, I would add that a calm, prefatory response to the attorney might also be useful. I’m thinking something along the lines of, “Counsel, you and I both know that what you’re doing is against the rules and making the deposition a miserable experience for your client. That’s not my goal. It’s also going to make this take much longer than necessary because I have to re-ask the question every time you do it. Your client is entitled to tell her own version of the events, let her do it. We can hash through your technical objections later with the judge.”
This, of course, requires the examiner to maintain a calm, professional composure throughout. Raising your voice, or even scowling will tend to reinforce the Us vs. Them dynamic and cause the witness to cling to her lawyer, regardless how poorly she was prepared for the deposition.
*McElhaney credits New York lawyer Patricia Hynes for this strategy. That either renders this post triple hearsay or I owe Ms. Hynes a royalty.
This is my second blog. I first blogged when my wife and I took a sabbatical to travel throughout Asia from the Fall of 2006 to the Spring of 2007. I really enjoyed my blog, even when we were in China and I had to figure out workarounds to enable me to publish posts despite government internet censorship, or while in more remote parts of India where just getting on the net was a challenge. I tried to post everyday and it allowed me to keep in fairly immediate touch with friends and family. I even remember rather vividly pounding out a post from an internet cafe in Nepal and glancing out the door to watch a painted elephant stroll by.
More satisfying than the ability to immediately communicate our amazing experiences, though, I found the blog to be a really great creative outlet during those months. Like many lawyers, I always dreamed of being a novelist. When I hadn’t found my voice by the end of college, I figured I better find a more . . . er, reliable way of making a living. (This was obviously a different era, when becoming a lawyer still seemed like a reliable way to earn a living.) But I’ve never let go of that longing to write, though I won’t be quitting my day job anytime soon. Thankfully, blogging–even if only to a small audience–provides a great creative outlet.
Maybe I was destined from a young age to enjoy blogging. When I was around 8 or 9, I used to hunt-and-peck on the typewriter to create a small newspaper, covering such gripping topics as our cat’s health. Using carbon paper, I’d make several copies, which I then delivered on foot or by bicycle to many of our neighbors within roughly a 2 mile radius of our house. (I also went door-to-door offering to shine shoes, so it’s not clear that I was really any more destined to write a blog than to shine shoes or sell vacuum cleaners.)
After the Spring of 2007 and the purpose for my first blog evaporated, I flirted for a couple of years with starting a new blog, but didn’t do it. I couldn’t think of anything that interested me sufficiently to write about it several times a week (and it’s just lame to start a blog, publish a couple of posts, then let the thing wither and die). Then, one night I had dinner with one of my wildly successful college buddies and he suggested I start a blog as a business development tool. At that point, I knew about a few interesting law blawgs, but I didn’t follow any religiously. I also had my doubts about whether blogging is a good business development tool. Still, I enjoy writing, and I respected my college buddy and decided to give it a try.
I struggled for months with what kind of blog to write. Since I really focus on employment issues in my law practice, should my blog simply track employment law developments or best practices? There are tons of these already out there, and not every new or changed law is interesting enough to write (or read) about. I also wanted some flexibility. There are some really excellent blogs with a really narrow focus, but my interests, even within the profession, tend to drift. After trying on a few different hats, I settled on the blog you’re reading now. It marries my appreciation for litigation that is practiced ethically and practiced well, with my interest in the business side of the profession.
Now, re-reading the last two paragraphs, I see that I need to clarify something. While it was a suggestion from a friend (who writes an enormously popular blog) that got me to revive my then-dormant desire to start a blog, I don’t write this blog for business development purposes, or even consider blogging a particularly good client development tool (perhaps a subject for a different post). In truth, I use business development as an excuse to maintain a blog, which is itself just an excuse to write.
A new California law restricts an employer’s right to seek access to existing or prospective employees’ social media accounts.
The law, Chapter 2.5 of Part 3 of Division 2 of the Labor Code (commencing with Section 980), defines “social media” for purposes of the new law to mean “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”
Under the new law, employers cannot request existing or prospective employees to disclose either a username or password, to access a personal social media account in the presence of the employer, or to divulge any personal social media. It is also unlawful to retaliate against an employee or applicant for refusing such a request.
Important exceptions to the law are (1) where divulging social media is “reasonably believed” to be relevent to an investigation of an employee’s violation of law or allegations of employee misconduct; and (2) if done for the purpose of accessing an employer-issued electronic device.
In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection. Here’s an example of how it would arise:
Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”
Defending Attorney: “Objection, calls for speculation, lacks foundation.”
Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”
Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”
There are probably a wide variety of reasons why attorneys offer running objections. I’ve even done it. First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space. Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?
But I almost never accept the offer if I’m attending or defending a deposition. Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one. If he/she asks a crappy question, it’s his/her fault, not mine. If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills. It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record. If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.
Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment). The examiner has a choice, upon receiving the objection. He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond. Or, he/she can consider the objection, conclude it may have some merit and rephrase the question. The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question. This is important where the objection to the question is that it is vague and ambiguous. While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous.
Finally, it can be cumbersome to obtain a ruling on a running objection. For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript. The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection. Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day. I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.
This is not to say that running objections are a bad idea. I just prefer, if I am defending a deposition, to deal with each question individually. If you do agree to a running objection, be sure to remain vigilant. If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.
An illustration that’s closer to home. A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery. One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance. This meant he thought there was a 50% chance the trial would not be continued!
I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance. Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period. Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial! The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.
As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less. This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them. For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help:
1. Give yourself more time to prepare. Like everything in litigation, preparation is the key to success. If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now. If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover. The alternative is to risk running short of time without having covered crucial topics. The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.
2. Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first. Speaking personally, I generally have an order I use over and over in taking depositions. It is one that follows logically from how I see the case. This can be a problem, though, when time is limited. Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics. If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense. (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning. It’s fun to see them look confused.)
3. Make a record that will support a motion for more time, if that becomes necessary. You may need more than 7 hours regardless how you prepare and how smoothly the depo goes. If this is the case, begin early creating a solid record to support judicial relief from the limit. The new section, CCP 2025.209(a) includes this language: “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” There’s a lot of room here. Either “witness XYZ cannot be ‘fairly examine[d]’ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . ” Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections. In one case, we relied heavily on the videographer’s time-keeping records to show long delays.
4. Resist the tendency to fight opposing counsel on the record. As a reminder, taking a deposition need not be a contact sport. This is especially true if you’re trying to get useful testimony and don’t have enough time. Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time. Focus, don’t get distracted!
5. Go off the record whenever there’s going to be “dead air.” If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it. The same is true if you need to re-group or review your notes or a document between questions. Just take a break.
I hope these help. Good luck.
Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.
The California Supreme Court will decide whether the terms of a franchise agreement, or the franchisor’s conduct at-odds with that agreement, govern for purposes of whether the franchisor can face liability for (mis-)treatment of a franchisee’s employee.
The issue is simpler than it sounds, but an opinion could have wide-ranging implications for franchisors doing business in California. In Patterson v. Domino’s Pizza, a 16 year-old employee of a Domino’s franchise sued, not only the franchisee and its manager, but also Domino’s, for alleged sexual harassment, retaliation and constructive wrongful termination. The franchisee petitioned for bankruptcy protection and Domino’s obtained summary judgment on the grounds that the operative franchise agreement placed sole responsibility for recruiting, hiring, training and supervising employees on the franchisee, such that the franchisee was an independent contractor for liability purposes.
In June, 2012, the California Court of Appeal for the Second District issued and certified for publication an opinion that reversed the summary judgment in Domino’s favor. In a nutshell, the Court of Appeal looked well outside the terms of the franchise agreement, focusing instead on the course of conduct between Domino’s and its franchisee. Among the items of evidence cited by the court was Domino’s specific hiring requirements applicable to all franchisees, including rules about qualifications, appearance standards and required training software programs. The court also pointed to testimony from the franchisee owner about Domino’s practices, including specific direction to fire certain franchisee employees (including the alleged harasser) and tactics, including “mystery shoppers,” designed to exert control over individual franchise stores. Triable issues remained, the Court of Appeal concluded, whether “there was a lack of local franchisee management independence” which could render Domino’s liable.
Accepting Domino’s petition for review, the Supreme Court has ordered the parties to limit analysis to the question whether Domino’s is entitled to summary judgment on plaintiff’s claim that it is vicariously liable for tortious conduct by a supervising employee of the franchisee.
If the Supreme Court’s opinion is unfavorable to Domino’s, it could change in a very material way the degree of control franchisors maintain over their franchisee’s employment practices. If it results in a shifting of responsibility to the franchisor, I imagine it will increase franchise purchase costs, trigger different or additional insurance provisions, with corresponding cost increases, and overall make franchise arrangements less appealing in our golden state.
