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Sunday, December 17, 2006

Would you like to re-view your testimony from behind bars, counselor?

Some of my colleagues at the bar wonder why many members of the public hold us in low regard. I don't wonder, and stories like this one (hat-tip Howard Bashman) ought make it clear to them too (italics and boldface mine):

A Microsoft lawyer argued Tuesday that three expert witnesses should be barred from testifying in the Iowa class-action lawsuit against Microsoft because plaintiffs' lawyers have repeatedly failed to provide documents related to the witnesses' testimony.


Microsoft asked last summer for documents used by [the plaintiffs'] expert witnesses to arrive at the testimony they planned to give in the case.

Microsoft lawyer Steve Holley told the judge Tuesday afternoon that the plaintiffs' lawyers had used contorted language to keep from producing the documents.

Holley claimed that lawyers at the Minneapolis firm of Zelle Hoffmann had split the word review — into re-view — to create their interpretation that Microsoft was only seeking documents that the witnesses had looked at twice.

James Reece, a partner at Zelle Hoffmann, which is co-counsel with Des Moines lawyer Roxanne Conlin for the plaintiffs, admitted to Holley that expert witness Netz had suggested the unusual interpretation. Reece had adopted it until a second court order on Nov. 28 made it clear that Microsoft wanted all witness documents.

Reece spent more than an hour on the witness stand late Tuesday afternoon after the jury was sent home.

Gosh, for the sake of Mr. Reece and Ms. Conlin, I hope there's more to this story than the Des Moines Register reports in this article. For their sakes, I hope the Microsoft lawyer misunderstood the supposed "admission," or the reporter just heard all this wrong. Because if that's all there is, Mr. Reece and Ms. Conlin's clients are almost certainly looking at losing the "benefit" of those experts' testimony: the judge will exclude or at least severely limit their testimony as a discovery sanction, or he'd have the power even to dismiss the plaintiffs' claims outright. And those lawyers ought to be looking at serious, serious personal and professional sanctions — fines, maybe jail time, disciplinary and maybe bar licensure consequences, and probably malpractice claims.

Let's be frank: Reading the word "review" to mean "re-view" is no different than simply lying about what the testifying experts looked at.

And it's a stupid lie in which the lawyers absolutely, positively should have known they'd be caught, even if the "expert" who suggested it thought they could get away with it. Every lawyer who's set foot inside a courtroom ought to know, has to know, can't find any excuse for not knowing, that it's absolutely, positively routine — universal — to have to turn over to the other side everything that your testifying experts have "reviewed" in forming their opinions, whether the experts skimmed it once or studied it for months in a wall-sized blow-up.

Occasionally you'll get into spats over whether an expert has "considered" or "relied upon" something he didn't specifically "review" for purposes of that particular case. Sometimes an expert will say, "Oh, that's just common knowledge in my profession, I didn't have to 'review' anything to know that." The cross-examining lawyer might say, "Sez who?" And then there may be some probing of just how common that knowledge is, whether it's in introductory textbooks or taught in professional schools, and so forth.

But any piece of paper that passes through a testifying expert's hands specifically for the purposes of his engagement to give testimony in that particular case just has to be turned over. It's not a close question, it's not a judgment call for the lawyer to make, it's just a basic, basic rule of pretrial procedure in all civil cases in every state of the Union. (But not, oddly enough, in some supposedly "civil" countries where they still discourage pretrial discovery and encourage trials-by-ambush.) Knowledge of this fundamental procedural rule is a big key to all expert witness retention and use strategies in modern litigation. (I posted at great length on the subject of testifying versus consulting experts, and expert witnesses generally, here if you really want the details.)

The Register reporter may not have understood all this, because he seemed to think that the thoroughness of Microsoft's demands were unusual:

The fight over the expert witness documents is an indication of how seriously each side considers even minor nuances to be in this case, which lawyers have said could last as long as six months.

Uh, no. This is not about "minor nuances." What the other side's expert witnesses have "reviewed" in forming their opinions and preparing their testimony is absolutely crucial to preparing their cross-examination in just about every case. There may be times when my client can't afford to pay me to take an expert's oral deposition before trial — to "swab him out," as trial lawyers say, by examining him thoroughly about every thing the expert's looked at and considered — but you still want that material in-hand at the trial even if you're doing a hip-shot cold cross-examination, and you're entitled to it. The only thing that strikes me as odd about this story is that the Microsoft lawyers apparently didn't discover the deception — for that's what this was, if the newspaper story is accurate — until the trial was underway. (Normally I'd have expected this to come out during a well-conducted pretrial deposition, which is another reason it's such a stupid lie.)

Why is it important that the document turn-over be completely comprehensive? Some of what the expert has reviewed may well not be reliable: "So, Dr. Xanadu, in forming your opinion that Bill Gates deliberately engaged in predatory pricing, and that he had actual knowledge that he was in unarguable violation of the antitrust laws, and that he had an average of three wet dreams each week dreaming about how he was putting it to the little guy, you relied heavily on two cartoons printed in the National Enquirer and a press release from the North Korean Ministry of Trade, isn't that true? Indeed, when the court ordered you to produce every shred of evidence that formed a basis for your opinion, those were the only documents you could produce, correct?"

And what's not there may turn out to be the most important thing of all: "Isn't it true, Dr. Xanadu, that you formed and put into writing your opinion that Microsoft was engaged in predatory pricing without ever examining a single financial document showing Microsoft's profits and costs?" If the witness is allowed to answer, "Oh, no, hey, I actually did look at all their documents on profits and costs, here they are in my briefcase with my handwritten and dated notes on them to prove it, but I just didn't look at any of them twice, so we didn't produce them when you asked" — then that would pretty much encourage deception, wouldn't it?

This is just roll-on-the-floor funny to any trial lawyer who reads it. And unfortunately, it's the sort of thing that — justifiably — causes the public to ridicule lawyers. All I can say in our profession's defense is that, well, these guys are about as representative of our profession as would be a bank robber who claimed to be representative of his profession after asking the bank security guard to hold his gun for him while he loaded his briefcase with cash from the safe.

If ever a judge were tempted to use his gavel — specifically, to bonk a lawyer on the noggin! — it would be in a case like this one.

Posted by Beldar at 04:50 PM in Humor, Law (2006 & earlier) | Permalink


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(1) DRJ made the following comment | Dec 17, 2006 5:33:15 PM | Permalink

I've seen things like this happen in court and even had things like this happen in my cases. Invariably, it happened in cases where the judge let the attorneys think they could get away with it, usually by refusing to firmly rule on other issues. I have no idea if that is the case here but if this judge ultimately doesn't exclude any of the plaintiff's expert witness testimony, I'd be suspicious of the prior rulings (or non-rulings) in this case.

(2) DRJ made the following comment | Dec 17, 2006 5:35:25 PM | Permalink

In any event, it's no excuse for attorneys to play games like this. I agree that this is a good example of why people view lawyers in low regard.

(3) Jinnmabe made the following comment | Dec 18, 2006 12:09:34 AM | Permalink

It's ridiculous but not as rare as it should be. Recently, we asked for all facts known to the opposing party that would support or tend to support their allegation that "X". Their response was "There is currently a question as to whether "X"." Well, no sh%# Sherlock, that's why I asked you what facts you knew of that supported it. Then, when I write a nice kind letter to informally solve the problem, the response is "Objection. Such information is protected by Attorney Work Product Doctrine/attorney-client privilege/the Magna Carta." Wait, the FACTS that are the basis for an allegation that YOU made are privileged?

Now, I am fairly new to practice, but I am told this crap is pretty standard from some attorneys, and I should quit letting it bother me. Well, it does bother me. And judges who wink at it are part of the problem, they're increasing legal costs for everyone. If I were that Microsoft lawyer, I'd have gone apoplectic at the "re-view" tactic. I mean, that's so stupid, I'm at a loss for words.

(4) Steven Jens made the following comment | Dec 19, 2006 12:26:48 AM | Permalink

Roxanne Conlin! There's a name I haven't heard in a long while. I just barely remember her run for Governor in 1982 (I was six).

(5) Gayle Miller made the following comment | Dec 20, 2006 10:56:05 AM | Permalink

I have, today, sent an irate but respectful letter to the State Bar of North Carolina regarding the outrageous and illegal conduct of rogue prosecutor Mike Nifong. I've also published it on my blog for the world to see (and so people can copy the address if they so desire).

Out of control ANYTHING is dangerous - but out of control attorneys can do far more damage than people think. On the other hand, Beldar, you give me hope for the breed.

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