What Were They Thinking

Lawyers Gone Wild (rated PG 13)

July 12, 2006

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…

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Law Firm's "Cynical Shenanigans" Draw Wrath of Massachusetts Judge

May 17, 2006

What Were They Thinking? Even the least experienced Massachusetts lawyer knows that when an answer to a lawsuit is not filed within the requisite 20 days and a default judgment is issued, the default is easily set aside as a matter of course based on even the flimsiest excuse. And, if the answer is filed only one day late professional courtesy mandates that the plaintiff permit the defendant to file late. Apparently some lawyers in a large Boston law firm (unidentified) never got this message: they refused to agree to set aside a default under these circumstances, forcing the defendant (who filed his answer one day late) to file a motion to remove the default. After reviewing the law and (predictably) setting aside the default, Superior Court Judge Mitchell Sikora slammed the plaintiff’s lawyers hard: Beyond the letter and purpose of the legal standards, conscientious judges and attorneys attempt to implement our litigation system with reasonable efficiency, civility, and common sense. This episode illustrates an egregious breach of those professional and cultural values. Counsel for Perrina Construction Company, a large Boston firm, has engaged in a mean-spirited and wasteful tactic. It has wasted the time and effort of an opposing attorney practicing in a small office. It has wasted the time and effort of the Superior Court. If one were to dramatize the public’s worst image of the contemporary litigator,…

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Is It Defamatory To Call Someone a "Dumb Ass"?

May 5, 2006

What Were They Thinking? Three California appeals judges thought not. In dismissing a defamation suit by two politicians who were listed as numbers one and two on a list of “Top Ten Dumb Asses,” the Court observed: The accusation that plaintiffs are top-ranking “Dumb Asses” cannot survive application of the rule that in order to support a defamation claim, the challenged statement must be found to convey “a provably false factual assertion.” . . . A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. To call a man “dumb” often means no more than to call him a “fool.” One man’s fool may be another’s savant. Indeed, a corollary of Lincoln’s famous aphorism is that every person is a fool some of the time. Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.”…

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How The Grinch Stole Christmas Vacation

November 9, 2005

As we rapidly approach the holiday time of year, it’s worth remembering that not all lawyers lack a sense of humor or a talent for poesy. In fact, some have both . . . . “The Grinch Hated Christmas” ….

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The Story of the Demoulas Fortune and the Judge’s Clerk

July 11, 2005

Yesterday’s masters of the universe are today’s cosmic dust. Anon _____________________ What Were They Thinking? A case that has received enormous attention in Massachusetts is the Massachusetts Board of Bar Overseers investigation into the activities of several attorneys for the defendants in the Demoulas case, a state court case involving claims of breach of fiduciary duty surrounding the ownership of a large New England supermarket chain. The case itself was a legal odyssey, spanning years and numerous state court decisions, but it is the aftermath of the litigation that stunned lawyers in Massachusetts and around the country. The losing defendants, dissatisfied with the decision of State Superior Court Judge Maria Lopez (who has since resigned in ignominy over a criminal molestation sentencing fiasco) and suspecting bias on her part, concocted a charade intended to induce the judge’s then law-clerk to disclose the inner workings of the judge’s chambers while the case was in litigation, and presumably prove that the judge’s clerk, rather than the judge herself, wrote the final (and most important) decision in the case. 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…

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Lawyer/Employee Who Secretly Modifies Severance Agreement Before It Is Signed by Employer Loses His Case

July 6, 2005

A word to the wise ain’t necessary, it’s the stupid ones who need the advice. -Bill Cosby   What Were They Thinking? It fascinates me when lawyers do exceptionally stupid things. One would think that the successful completion of four years of college and three years of law school (not to mention years of experience watching clients do unwise things) would inoculate lawyers against the most foolish forms of human behavior. But, of course, experience shows otherwise. Even experienced lawyers are as likely to be rendered stupid by fear, greed, hatred and jealously, and to act on those emotions, as any other highly educated person. A recently reported Massachusetts Superior Court case informs on this point. Although this case provides an interesting legal treatment of a contract issue (indeed, so interesting that the case was featured on the front page of Massachusetts Lawyers Weekly), it’s primary appeal is morbid curiosity. What was he thinking? An attorney in good standing in Massachusetts (who will remain unnamed), was employed as Director of Procurement for Navisite. To make a somewhat long story short, his employment was terminated by Navisite in early 2002. After some back and forth over the terms of his severance, Navisite agreed to give the attorney two weeks severance pay ($5,300) and to pay his first month of COBRA benefits. The lawyer, however, had other plans. After receiving this agreement…

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