Mass Law Blog

The Laugh Test

[Update: decision denying Blockshopper’s Motion to Dismiss]

[Update: Jones Days’ Opposition to Blockshopper’s Motion to Dismiss] is one of many small web sites that have sprung up to follow local residential real estate markets. So far, the site highlights purchases in upscale neighborhoods in Chicago, St. Louis, South Florida and Las Vegas. The site identifies purchasers by name, street address of the property and the price paid. Of course, this information is available in local real estate publications (like Banker & Tradesman here in Boston) or at the local registry of deeds. Blockshopper also performs an Internet search on the person, and based on what it finds identifies the purchaser’s job title and employer. When it can, the site pulls a photo of the person from somewhere on the Internet (like the purchaser’s company site), and pastes it into the item. If the home purchaser has an online bio, the site will link to it.

Example: I saw on Blockshopper that Juan Luis Goujon had recently purchased a property in Chicago. I Googled “Juan Luis Goujon,” and the first hit I got was to Blockshopper, profiling the property, linking to Mr. Goujon’s company, and posting a photo of him from the site. Mr. Goujon is not a celebrity or a politician, and he may not be thrilled with this publicity (if anyone truly cares). However, the information regarding the address of the property, the purchase price, and Mr. Goujon’s job as an executive at a Chicago HR firm, are all public, factual information.

So, if you are Mr. Goujon, or any one of the many other real estate purchasers profiled by Blockshopper, just too bad, eh? In the age of almost unlimited information, factual, public information like this can be pulled together and posted on the Internet, right? So you would think, but not so fast.

Jones Day is one of the largest law firms in the U.S., with over 2,000 lawyers worldwide. That’s a heck of a lot of lawyers, no matter how you slice it. As many lawyers know, Jones Day is one of the premier law firms in the United States, respected by its clients and feared by its adversaries. These are not people to trifle with.

Blockshopper encountered Jones Day after Blockshopper profiled several Jones Day associates who had purchased real estate in Chicago. No big deal here – the properties were not exactly big ticket items, and you wouldn’t think that anyone would be very interested, with the possible exception of the attorneys’ friends and co-workers at Jones Day. And, as it often does, Blockshopper posted photos of the attorneys (from the Jones Day web site) and provided a link to their bios on the Jones Day site.

But Jones Day was very interested. It filed suit against Blockshopper in U.S. Federal District Court in Chicago. After reminding the court that Jones Day is “one of the world’s most famous law firms” (probably unnecessary), the complaint goes on to assert that:

  • the photos of the associates were “proprietary.” (Recall: they can be viewed on Jones Day’s public web site).
  • the references to Jones Day on Blockshopper were likely to cause “confusion and mistake” as to the source of the services provided on the site. In other words, people looking at Blockshopper could be misled to think that the site was affiliated with, or sponsored by, Jones Day. Accordingly, Jones Day claimed that Blockshopper was infringing Jones Day’s trademark rights.

Of course, these allegations (along with some others that I’ll skip over here) would seem to fail the laugh test. It challenges my imagination to think that anyone would conclude that the link to a couple of Jones Day associates on this site suggested that Jones Day had sponsored the site or was in some way associated with the site. After all, the World Wide Web is built on links – millions of them, if not billions. Everyone who uses the Internet for a few hours quickly realizes that a link does not mean that the “linked to” site has anything to do with the “linked from” site. And, the Blockshopper site links to hundreds of other purchasers, often with links to their web sites. Does Jones Day think that users of the site will conclude that the employers of those real estate purchasers are also sponsors of the site? (Interestingly, Blockshopper’s reported real estate purchases seem to involve a disproportionately large number of lawyers).

When you file a suit that doesn’t pass the laugh test, you attract unwanted attention, especially when you are “one of the world’s most famous law firms” and the suit threatens what many would consider First Amendment rights of expression. When it comes to the First Amendment, the Internet is very protective of its own.

And so, Jones Day’s lawsuit has attracted a great deal of attention. A Google search (“Jones Day” and Blockshopper) results in hundreds of hits, almost all (based on my quick survey) critical of Jones Day. The old expression is that “there’s no such thing as bad publicity,” but in this case, I have to wonder. On the other hand, the owners of Blockshopper must be drinking Dom Pérignon champagne and eating Beluga caviar – they could never have bought this much publicity for their site. I doubt that very many people in Chicago were even aware of the site. (Hey guys, when are you opening a Boston branch?).

It takes muscle to fight muscle, and the Electronic Frontier Foundation (the pre-eminent civil liberties group focused on digital media), has come to the rescue in Blockshopper’s defense. The EFF has filed a motion to dismiss the case which (in my opinion) makes mincemeat of Jones Day’s claims.

I expect a quick retreat by Jones Day. But, as a matter of principal, I think that Blockshopper (with the EFF’s encouragement and support) will demand that Jones Day drop its suit without terms. However, we’ll have to wait to see how this plays out; after all, Jones Day is not known to back down from a fight.

Nevertheless, I the lawyers at Jones Day who filed this case, and the associates whose real estate purchases led to the case, may be asking themselves, “what was I thinking”? And other lawyers at Jones Day may be wondering whether, after this is all over, their future real estate purchases will be targeted for special attention by Blockshopper.

Thoughts on the Art of Persuasion and the Defense in the Entwistle Case

Some thoughts on the recently concluded Entwistle murder trial in Massachusetts.

A trial is the art of persuasion.

Civil or criminal, jury or jury-waived, the same principles of persuasion apply. Generations of lawyers have spent their careers thinking about these principles, trying to understand, refine and apply them. The huge number of uncontrollable variables in a courtroom make trial persuasion an art rather than a science, but as in all competitive activities, even small advantages can increase your odds, so lawyers keep studying and trying.

Some of the most basic principles of trial advocacy are well accepted by now. One of these is captured by the expression: “tell them what you’re going to tell them, tell it to them, and them tell them what you told them.” In a trial, this rule of advocacy applies most importantly to what lawyers call the “theory of the case.”

Every experienced lawyer knows the persuasive importance of “primacy” (the first things the jury hears) and “recency” (the last things they hear). Simply put, people tend to remember the first and last things they hear better than the stuff in the middle. The principle of “primacy” is so important that many studies have found that jurors are inordinately influenced by the opening statement in a trial, and therefore most lawyers put particular effort into crafting their openings. Some jurors pay little attention to anything except the openings and closings. As the jury experts at DecisionQuest write:

Jurors listen deductively, developing a story that explains the conflict early in the trial process and then filtering the evidence selectively to maintain a consistent picture. The trial lawyer must tell a complete story – which includes compelling themes, a specific narrative structure, and narrative elements – in the opening statement if he or she is to get jurors to form a favorable story of the case.

Lawyers also are taught early on that every party in a case needs a “theory of the case.” The evidence presented by each side is designed to explain the evidence in a way that is consistent with that theory. Common examples are: “my client wasn’t negligent, the injured plaintiff was reckless.” Or, “my client didn’t commit the crime, the evidence the State is using to attempt to convict him is defective because the crime lab mishandled it.”

Or, less commonly, “my client didn’t murder his wife and child. His wife killed their daughter and then committed suicide. My client removed the murder weapon from the murder site in order avoid shaming his wife’s memory. ”

Typically, the theory of the case is introduced in the opening statement (tell them what you’re going to tell them), and each side attempts to introduce evidence to support its theory and discredit the competing theory (tell it to them). In final argument, the lawyers for each party attempt to persuade the jury that the facts and the opinions of experts support their theory (tell them what you told them). By then, the jury has heard each party’s theory repeatedly. And most importantly, the opening statement has given the jury a mental framework within which to organize and make sense of the (often chaotic) evidence presented during the trial.

It appears that these basic rules of persuasion were not followed in the Entwistle case. Defense counsel for Neil Enwistle did not introduce his defense theory during his opening, but rather introduced it in closing argument. As one Boston paper summarized:

“Neil found Rachel and Lillian dead,” defense attorney Elliot Weinstein said in his closing argument in Middlesex Superior Court, where he said Entwistle had returned the gun to his in-laws’ home and did not report finding the bodies because he did not want to shame his wife.

“Neil saw the .22 and knew instantly what had happened, and in those moments, he knew what he had to do and what he couldn’t do,” Weinstein said. “He had to get the .22 back to Carver, and he couldn’t call the police because he couldn’t tell them what Rachel did. He wouldn’t tell them because he wouldn’t tarnish Rachel’s memory.”Was he thinking rationally, clearly or correctly? Of course not. How could he? Neil drove to Carver and returned the .22.”

If this is accurate, this defense violated every rule in the book.

First, the jury was unprepared for this “suprise” defense theory. The jury didn’t hear it fully expressed until closing, although I understand it may have been hinted at or implied during the trial (but not in the defense’s opening statement). For the jury to hear this theory for the first time in closing was the worst possible way for Entwistle to present it. It required the jury to test the theory against the evidence after the evidence had been introduced, rather than as it was being introduced. A worse approach to the psychology of persuasion is hard to imagine.

Second, from what I’ve read about the trial, the defense gave the jury no evidence to support this theory of the case. No only did Entwistle not testify to what he did and his motivation for doing it (he didn’t testify at all), but no one else provided any evidence to support this theory.

Along the same lines, the defense presented no expert testimony on the phenomenom of postpartum depression. There was no evidence showing that Entwistle’s wife was depressed, much less that she was so depressed that she would kill her baby daughter and then herself. If such evidence had been available, and expert opinion explaining postpartum depression and its possible consequences would have been essential to the defense.

Judges always instruct jurors that the evidence comes from the testimony of witnesses, as well as documents or objects (guns, clothing) that are allowed into evidence. What the lawyers say is not evidence. The Entwistle defense may have presented a theory of the case in closing argument — depression, murder, suicide, husband found wife and daughter, husband returned the gun to the wife’s father’s house to avoid shaming his wife — but there was no evidence to support this theory.

Rarely has a defense to a murder charge been so weak. It’s possible that Entwistle played the only hand he had and prayed for a miracle. It’s also possible that the district attorney’s office was unwilling to negotiate a plea that was acceptable to Entwistle, and Entwistle felt he had nothing to lose by going to trial.

However, to me the defense recalled the old Lenny Bruce line, “if your old lady walks in on you [when you’re in bed with another woman] deny it. Yeah. Just flat out and she’ll believe it.”

(Disclaimer: I am not a criminal lawyer, and I did not attend this trial. The trial was covered heavily by the Boston press, and my observations are based on media reporting. This is the first time, and very likely the last time, that I will comment on a criminal case in this blog, but the rules of persuasion are much the same in a capital case and a case involving the infringement of intellectual property rights, and hence my interest in the defense in this case.)

Are Judges Intuitive or Analytical? Ruminations on the Cognitive Style of Judges

The best aspect of law school is the subordination of math. Anon


Are judges good at math? Foolish question, of course. Since many lawyers have a math phobia, it follows that many judges would, as well.

Nevertheless, a group of academics gave a three-question quiz to a group of several hundred trial judges. The purpose of the quiz was to determine whether the judges’ style of cognitive reflection, as a group, was “intuitive” (i.e., bad) or “analytical (i.e. “good”) decision makers.

Here are the three questions. Each one is designed to have you “jump” to a quick, intuitive wrong answer, whereas analytical reflection will lead to the non-obvious right answer.

(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? _____cents

(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? _____minutes

(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake? _____days.

Not surprisingly, the judges failed miserably. 31% got all three questions wrong, and only 15% got all three right. Yes, for the most part lawyers and judges are bad at math. Does that mean they are intuitive and not analytical? I don’t think so. Ask the question in the wrong language, and you are sure to get the wrong answer. I think judges and lawyers are particularly good at an (arguably) more complex, but certainly different, kind of analytical thinking that may not carry over into straight logic or mathematics.

Here is a link to a download site for the study: Blinking on the Bench: How Judges Decide Cases

Oh, and if you’ve taken the test yourself, click here to see how you did. If you’re a lawyer and you can’t figure out how these answers are correct (and your “intuitive” answers were wrong), you should be very glad that you went to law school.

Dummies Guide to Understanding Subprime Mortgages

A lot of people are having a hard time understanding how the country got into the sub-prime mortgage mess, or even exactly what a “sub-prime mortgage” is. How could so many intelligent, responsible people in housing, banking, finance and government have gotten this so wrong? If you’re are one of these people, this skit may aid your understanding.

Judge Young Pulls No Punches When it Comes to Mandatory Sentencing

You may recall the brouhaha that arose last year when a Massachusetts state district court judge vacated a prior state court conviction in order to mitigate the impact that the conviction would have on the defendant under the federal sentencing guidelines in an upcoming sentencing in federal court. The defendant, Matthew West, was due to be sentenced in federal court by Judge Young later the same day. Under the federal sentencing guidelines, the existence or non-existence of a prior conviction made a huge difference in how much time West would be required to serve under the guidelines. Hence the urgency (on the part of West) in getting the earlier conviction vacated so it wouldn’t be counted against him.

The whole bizarre story is described here. You may recall that after that story broke the judge was the subject of massive public criticism (think talk radio, Boston Herald). She ended up in the emergency room with chest pains, and upon recovering she changed her mind and reinstated the conviction. Wow. Being a judge in Massachusett is very stressful. (For another example of just how stressful, click here).

Now Massachusetts Federal District Court Judge William Young has used his sentencing memorandum in the Matthew West case to expound his views on the legislative and judicial history behind the guidelines. This 35 page memorandum, available here, is a brilliant, exhaustively researched and opinionated discussion of the extraordinarily controversial issues associated with mandatory sentencing guidelines. Suffice it to say, Judge Young was no fan of this law (which was demoted from “mandatory” to “advisory” by the Supreme Court in 2005 in Booker v. United States and subsequent cases), and he is highly critical of the law, even as it is applied post-Booker.

As a sordid bonus, the memorandum includes the 15 page transcript of the hearing before the state court judge at which West’s state conviction was vacated, including the famous quote from the judge, “Tell him it was an early Christmas present.” The question of who said this is likely to be a trivia question for Massachusetts lawyers for years to come. The answer: Justice Diane Moriarity.

After Ten Years of Proceedings, Final Decisions of Disbarment from SJC in the Demoulas Ethics Cases

I have written several times about the disciplinary proceedings against several attorneys who represented the losing party in the Demoulas cases. (see here, here and here).

As I described in the first of these blog entries:

The saga of how Gary Crossen (then of Foley, Hoag & Eliot and former ethics counsel to two Massachusetts Governors), Richard Donahue (a former President of the Massachusetts Bar Association, chair of its Commission on Professionalism and President of Nike, Inc.), and Kevin Curry, a former Massachusetts Assistant Attorney General, lured the judge’s former law clerk out-of-state in order to tape record his “confession,” attempted to bully him into signing an affidavit, conducted surveillance on him, and more, is described in agonizing detail in the 229 page decision. As a fan of hard boiled detective novels (including Boston’s current claim to fame, Dennis LeHane, author of Mystic River and other engrossing works), I can only say that in Boston, reality is stranger than fiction.

After years of hearings and delays Bar Counsel issued her decision recommending the “ultimate sanction,” disbarment of all three attorneys. Her decision is now working its way through the Board of Bar Overseers and will ultimately be in the hands of a single Justice of the State Supreme Judicial Court. The consensus in the community appears to be that bar counsel’s decision will be followed.

Bar Counsel’s recommendation of disbarment for two of the lawyers was adopted by the Massachusetts Board of Bar Overseers. That decision was appealed to the SJC by two of the three attorney’s involved (one of the three, Richard Donahue, received a three-year suspension, and chose not to appeal the recommendation).

Today, the SJC issued the last word on one of the most sordid episodes in Massachusetts legal history (which has no shortage in this area). The court, in decisions written by Chief Justice Margaret Marshall, adopted the Board’s recommendations as to Gary Crossen (decision here) and Kevin Curry (decision here), disbarring both.

A couple of choice quotes by Justice Marshall in the Crossen opinion:

“The scope of this misconduct has scant parallel in the disciplinary proceedings of this Commonwealth. . . . It struck at the heart of the lawyer’s professional obligations of good faith and honesty.”

“That there is no blueprint in our prior cases for the facts of this proceeding should come as no surprise, given the unusual scope of the misconduct”

“We have found [no prior case] that involves such a large number of attorneys . . . or deceit so exquisitely choreographed . . ..”

And in the Curry decision:

“Curry engaged in egregious, multiple, and prolonged violations of the disciplinary rules prohibiting attorneys from acts of deceit and dishonesty . . .. With no motive other than his his own financial gain, and with no evidence, Curry persuaded a group of dissatisfied litigants (with whom he had no prior dealings) . . . that a Superior Court judge had “fixed” their case, so that it was “over before it began.”

Ray Niro Offers $5,000 for Identity of Author of "Troll Tracker" Blog

It appears that infamous Chicago patent attorney Ray Niro has offered $5,000 for anyone who will identify the author of the Patent Troll Tracker, which Niro apparently believes has made uncharitable comments about him. The anonymous author of the Patent Troll Tracker blog takes this in good humor, describing the offer as a “bounty” and stating:

I have never had a bounty on my head before (see also blog post here). And I can’t imagine why Ray Niro would pay $5,000 to find out who I am. I emailed him to find out (from the corner internet cafe, heh). He didn’t respond. Ray: if you up it to $50,000, can I collect the reward? . . .

Yes, Ray Niro has decided to offer $5,000 to find out who I am. According to the article, he wants to know “who is saying all those nasty things” about him. . . .

PS To my very few friends, family, and colleagues in the know, if you’re reading this, please don’t call Niro and collect the bounty. That would be tacky. OK, thanks.

Wow, who knew patent law could be so interesting? More on this controversy (huh?) here.

Demoulas Disbarments

Two updates:

First, I learned today (12/11/06) that the hearing officer in this case, Ellen Carpenter, tragically passed away at the age of 52.

Second, Boston Magazine alerted me to an article discussing the Demoulas/Law Clerk scandal. If you want a quick summary of the case, Boston Magazine-style, click here for The Demoulas Trap:

Secret tape recordings. Clandestine meetings. Fake identities. Nothing was off-limits when supermarket tycoon Telemachus Demoulas’s desperate legal team hatched its plan to squeeze Paul Walsh. A billion dollars was at stake in the nastiest civil court case in state history, and the lowly court clerk was an easy mark. Until he decided to fight back.


On October 16, 2006, the Massachusetts Board of Bar Overseers issued its long-awaited decision in the Demoulas attorney misconduct case, essentially affirming the hearing officer (Ellen Carpenter) in her decision recommending disbarment of three Massachusetts lawyers. The BBO accepted the recommendation of the hearing officer and ordered the disbarment of two of the attorneys (Gary Crossen and Kevin Curry), and ordered that the third attorney, Richard Donahue, be suspended for three years.

The three attorneys now have one more shot at vindication, before the Supreme Judicial Court. Don’t hold your breath.

I discussed this matter in some detail a six months ago in one of my first “what were they thinking” blogs.

I quote from the final paragraph of the BBO’s decision, which says it all.

[The publicity associated with this case] has taken an ugly toll on the public’s perception of the legal profession and those who practice it. By their conduct, as the hearing officer observed, [Crossen, Curry and Donahue] have “brought shame and disrepute upon the bar. They have left what one can only hope is not an indelible impression that lawyers, even very prominent ones, will do almost anything to prevail if enough money is at stake and available for their use.” . . . We wholeheartedly agree.

This case (both the original Carpenter decision and the BBO decision) offer a clear look at the sordid underbelly of the legal profession. John Grisham only wishes that he could have come up with a plot this bizarre. The BBO and hearing officer’s decisions should be read by the public, and should be mandatory reading for attorneys.

Recent Cases (or, Lawyers Behaving Badly)

Don’t get me wrong, I have nothing, nothing, against leasing companies. But it seems that some people do, so it grabs my attention when a leasing company sues for breach of a lease and not only loses its case but gets hit with a counterclaim that results in a judgment for violation of M.G.L. c. 93A (the Massachusetts “unfair and deceptive acts and practices” statute). This was the outcome in General Electric Capital v. MHPG, Inc. Following default on the lease GE sued not only its lessee, MHPG, but (since MHPG was insolvent), the next best thing, the company’s stockholders and directors. After all, you’ve got to go where the money is, right?

After Massachusetts Superior Court Judge Ernest B. Murphy (no stranger to controversy himself) rejected GE’s attempt to “pierce the corporate veil” he ruled that GE’s suit against the shareholders/directors was a violation of c. 93A (the Massachusetts statute prohibiting “unfair or deceptive acts or practices”). To quote:

As the case progressed . . . GE learned there was no personal guaranty from either of the [directors] and that both had left MHPG almost two years prior to the default under the lease.

Even after having been alerted to the absence of any personal guarantees, GE . . . vigorously prosecuted the case against [the directors]. This Court finds this continued litigation inexcusable, and well parametrized within a pattern of behavior which was “immoral, unethical, oppressive, [and] unscrupulous.” The pursuit of satisfaction under the lease may not be legitimately furthered through oppressive legal action against clearly legally disinterested parties. Therefore, this Court grants summary judgment in favor of defendants London and Miller’s counterclaims, as to liability.

Lawyers are trained to be zealous in the representation of their clients, but there’s a fine line between zealousness and abuse, and it looks like GE’s lawyers may have gone a bit too far on this one. However, it’s a safe bet that GE will take this case to the Appeals Court before paying on this counterclaim.

Lawyer beware!

Class Action Crazies Attack Wal-Mart

What were they thinking? David Fish at Collins Law, passed on this case: Acree et al v. Wal-Mart Stores, Inc. (Complaint in pdf format)

This class action lawsuit alleges that Wal-Mart claims that music CDs it sells do not contain explicit language when in fact some of them do. Quoting from the suit:

Wal-Mart violated its practice and policy by allowing CDs to be sold that contained explicit content but that did not contain an ‘explicit content’ or ‘parental advisory’ warning label. This worked to dupe the very consumers who have come to trust and rely on Wal-Mart as a ‘family friendly’ store.

The case was filed in state court in Chicago. Too bad the plaintiffs didn’t file it in PRC, Massachusetts. That would have led to some amusing courtroom scenes.

I’ll let you draw your own conclusions on the merits of this one, but I’m confident that the attorneys who filed this suit have the best interests of the injured class in mind and do not, I repeat do not, have attorney’s fees in mind.

"Hideous Company Sends Boing-Boing Pre-Emptive Nastygram"

One of the risks of sending a legal demand letter to someone in the Internet age is that they will post it on the web and ridicule you. That’s what happened when the Baker & McKenzie law firm sent the very popular web site Boing Boing a letter warning it not to broadcast the World Cup competition, and containing the ominous threat that it would have its “agents actively monitor your website and others to identify unlawful activity.” Boing Boing published the letter here. (The letter is an image, so you may have to print it to read it).

Is a preemptive strike like this legally effective? Almost certainly it is not, except as a warning to the web site owner itself not to publish video or audio from the Cup. However, no sane, established web site owner would do so even without such a warning, since the site owner would risk significant damages (and particularly “statutory” damages – aka punitive damages) of up to $150,000 per infringement ). The far greater likelihood is that a third party will publish the audio or video (on a video site such as, for example, where videos of the Cup continue to be rampant), and that it was publications of this nature that Baker & McKenzie was targeting.

However, the owners of the World Cup broadcast rights must give notice after the fact under the strict procedures described in the DMCA (at least in the U.S., where Boing Boing is based). A preemptive, “before the fact” letter gives the copyright owner no greater rights than if it had not sent it at all. The owner of the Cup broadcast rights would still have to go through the “after the fact” notice and “take down” procedures mandated by the DMCA.

Back to my original point, when you send these demand letters (which by their nature often are extreme examples of “lawyer-speak”), you do risk public ridicule on the Web, and people will often try very hard to effect this. One of my all-time favorite examples of this is “The Rocket Formerly Known as Black,” which is quite funny, and seems to have taken on a life of its own.

Lawyers Gone Wild (rated PG 13)

I’ve debated with myself whether to post this video of Joe Jamail, the Texas lawyer who won a 10 billion dollar verdict in the infamous (in the 1980s) Penzoil v. Texaco case. Of course, my colleagues, trouble makers that they are, encouraged me to publish this.

Click here to see the video.

The background of this case, which was a cause celebre of major proportions at the time, is discussed here.

Old Joe got a whopping $1 billion contingent fee out of this case (which settled for $3 billion), resulting in much of the University of Texas Law School being beholden to him.

In any event, its a long way from the trenches of pre-trial discovery to the glory of a multi-billion dollar settlement. The miracles of the Internet now bring us a videotaped deposition by Mr. Jamail in this case. In most states, this deposition would result in court sanctions all around, but in Texas in the early ’80s, this kind of conduct seems to have been acceptable. Maybe it still is.

Up here in Boston, it would be pretty rare to see something like this.  We’re very polite and circumspect here.  I don’t know if that’s a good thing or a bad thing.  Probably good.

Jamail, whose back is to the camera (you can only see his left hand), is deposing an expert witness. The Texaco lawyers appear to be defending. Unfortunately, everyone is off camera except for the witness.

Lawyers: please don’t show this to your clients or expert witnesses when they ask you what a deposition is like.