For the lawyers: Depends on the definition of "copy"

[mikea]

PL: I don’t care what kind of technology it uses. Has your offices — we don’t have technocrats on the Ohio Supreme Court. . . .

Do you have photocopying machines at the Recorder’s office? If you don’t know what that means in an office setting, please tell the court you don’t know what it means in an office setting to have a photocopying machine.

D: I would like to answer your question to the best of my ability.

PL: I’m asking you to answer that.

D: So if you could explain to me what you mean by –http://blogs.wsj.com/law/2011/03/18/what-is-a-copy-machine-presenting-a-deposition-for-the-ages/

I have to deal with idiocy at work, too, but this makes me think that neither of our professions pay enough.

 

[wabower]

PL wasn't very good at composing the questions.

I have to deal with idiocy at work, too, but this makes me think that neither of our professions pay enough.

 

[mikea]

I gather the issue was that the county recorder said they can't make copies, even though they have 3 fax machines. I guess spending $150 of the taxpayers money for an all-in-one printer requires legislative action.

 

[ebacon]

I could be a litigator...for about eighteen minutes.

Then I'd be a defendant.

 

[timwinters]

I worked in Cleveland for about 14 months...until last December.

I've never seen so many county officials and judges go to jail.

 

[Paul Allen]

I worked in Cleveland for about 14 months...until last December.

I've never seen so many county officials and judges go to jail.

It's not over yet. There will be more of them going to jail soon. There's a judge on trial now for lying to the FBI during the county corruption probe.

 

[flykelley]

I worked in Cleveland for about 14 months...until last December.

I've never seen so many county officials and judges go to jail.

Just come work in Detroit then, we have the ex mayor and some of his side kicks, one ex female council person and now the ex mayors Dad and one of his friends and the ex head of the Detroit water dept all being charged with Federal crimes. Its just a mess!

Mike

 

[rainsux]

> Cleveland ... I've never seen so many county officials and judges go to jail.

Not to mention the 47 coppers that were running their own drug gang.

 

[wsuffa]

I worked in Cleveland for about 14 months...until last December.

I've never seen so many county officials and judges go to jail.

Apparently you haven't been to Bell, California lately....

 

[AdamZ]

That is absolute horse excrement! The Defenant knew exactly what the Plaintiff's attorney meant and was playing freaking BS games. IMHO He should be sanctioned and made to pay the Plaintiff's attorneys fees and cost of the deposition.

 

[tdager]

I love it! Sorry Adam, but lawyers (mostly defense, but sometimes plaintiff) play the obtuse word game, the "answer yes or no" to questions that simply cannot be answered that way, and other "lawyer tricks" that it is fun to see someone get their goat occasionally.

 

[steingar]

Nice to know the Buckeye State is still good for something other than generating teams that win big national college basketball tournaments.

 

[EdFred]

Nice to know the Buckeye State is still good for something other than generating teams that win big national college basketball tournaments.

You mean way back in the 60's?

Ohio State (1960)
Cincinnati (1961, 1962)

And back then they weren't huge...22-25 teams.

 

[steingar]

I was referring to how they're doing this season. Just happened to catch the game this weekend.

 

[EdFred]

See, by "win...national college...tournament..." I assume that to mean them winning the whole tournament. I was actually surprised it had been so long.

 

[AdamZ]

I love it! Sorry Adam, but lawyers (mostly defense, but sometimes plaintiff) play the obtuse word game, the "answer yes or no" to questions that simply cannot be answered that way, and other "lawyer tricks" that it is fun to see someone get their goat occasionally.

A little of ones own medicine is good now and then but this kind of stuff just makes the Defendant looked like a smacked ass.

 

[mikea]

That is absolute horse excrement! The Defenant knew exactly what the Plaintiff's attorney meant and was playing freaking BS games. IMHO He should be sanctioned and made to pay the Plaintiff's attorneys fees and cost of the deposition.

I think it's entirely possible that an "IT director" for a government office did not know the term "photocopy." They should have made it simpler, "Is there a device that can copy paper documents?" - What do you mean 'copy'?"

In the end he said everybody called it "Xerox," and I can believe he's that stupid. Sometimes we work with and for "IT Directors" of that caliber.

 

[PittsDriver]

In fairness to the defendant in this setting, it's not his job to cooperate or make things easy for the questioner. His purpose is served if the questioner learns absolutely nothing from the time spent in deposition. In that regard, it was both funny and effective. Our legal system is based upon the concept that adversarial confrontation yields the best result. If you show up in that process trying to be fair you're going to get the ass of your pants eaten out by a pit bull in a suit.

I was once deposed in a patent litigation case in which a large telecom company was trying to invalidate intellectual property I had created for my previous employer some 12 years earlier. I spent over 7 hours in deposition mostly saying "I can't remember" and got paid $1200 an hour for doing it. If they're going to play the game, they gotta pay the players

 

[AdamZ]

In fairness to the defendant in this setting, it's not his job to cooperate or make things easy for the questioner. His purpose is served if the questioner learns absolutely nothing from the time spent in deposition. In that regard, it was both funny and effective. Our legal system is based upon the concept that adversarial confrontation yields the best result. If you show up in that process trying to be fair you're going to get the ass of your pants eaten out by a pit bull in a suit.

I was once deposed in a patent litigation case in which a large telecom company was trying to invalidate intellectual property I had created for my previous employer some 12 years earlier. I spent over 7 hours in deposition mostly saying "I can't remember" and got paid $1200 an hour for doing it. If they're going to play the game, they gotta pay the players

In a boxing match your not supposed to make it easy for your opponent to win either but you can't kick him in the nads and you can't punch the kidney. While this is an adversarial process truth is still at the core of it.

The answer " I can't remember" is a totally appropriate answer if its the truth.

 

[Obi Heed Kenobi]

In fairness to the defendant in this setting, it's not his job to cooperate or make things easy for the questioner. His purpose is served if the questioner learns absolutely nothing from the time spent in deposition. In that regard, it was both funny and effective. Our legal system is based upon the concept that adversarial confrontation yields the best result. If you show up in that process trying to be fair you're going to get the ass of your pants eaten out by a pit bull in a suit.

To an extent, that's true.

Keep in mind that 9 times out of 10, evasion is obvious, though. That kind of stuff really does not play well to a judge or jury.

Seriously - I read through that article and the excerpted transcript, and thought, "wow, what a d-bag, and I frankly don't think this is a credible witness and I have no doubt that based upon his conduct he is a jackass and dishonest to boot." And that's without hearing or seeing it - but it doesn't take much in the way of imagination. While there's no rule that's uniform, from my experience, it's the witness that comes out looking bad when they get into a fight with the questioner (keep in mind that we're talking beyond mere annoyance or frustration with boneheaded questions).

Should the lawyer have been asking the questions differently? Absolutely, and I found myself thinking, while reading the transcript, "dude, you're getting drawn into a fight with a combative and evasive witness, bad move, just rephrase the question to something like 'do you have a machine that can repoduce documents.'" Seriously, as an attorney, you have to recognize when you're dealing with an a-hole and avoind being sucked down to that level yourself, because then you stop thinking straight and concentrate on the argument with the witness, rather than on what's actually at issue.

I was once deposed in a patent litigation case in which a large telecom company was trying to invalidate intellectual property I had created for my previous employer some 12 years earlier. I spent over 7 hours in deposition mostly saying "I can't remember" and got paid $1200 an hour for doing it. If they're going to play the game, they gotta pay the players

Holy ----!!!

I mean...holy ----!!!

The biggest hourly I've seen for a lawyer was around $900/hr., and that guy was out of NYC.

 

[PittsDriver]

Holy ----!!!

I mean...holy ----!!!

The biggest hourly I've seen for a lawyer was around $900/hr., and that guy was out of NYC.

Alan Greenspan doesn't get that for his time either. It was a really important piece of intellectual property that defined and locked up the only currently viable way of managing core optical networks for the future. They lost this challenge and, maybe coincidentally, maybe not, are now owned by my previous employer in a multi-billion dollar acquisition. My fee wasn't even in the round off error.

So this attorney pushes a copy of an email at me and asks me if I wrote it. It's got my name and email address in the from field and it looks like something I would have written but heck, I don't remember writing it. It was 12 years ago. My answer is "I don't remember." Am I being a uncooperative jerk or just truthful? Attorneys are experts in making something look like something that it isn't or vice versa. There's no upside in me helping them do that by saying "yeah, it looks like something consistent with what I would have said" and that's just the nature of the system and has nothing to do with me being evasive. If you want to say that you can prove that it came from my computer at a time when you can prove that I was sitting at it and it was related to something I was just working on when it was sent then go for it. If you ask me if I wrote it 12 years ago, I don't remember.

 

[Obi Heed Kenobi]

Alan Greenspan doesn't get that for his time either. It was a really important piece of intellectual property that defined and locked up the only currently viable way of managing core optical networks for the future. They lost this challenge and, maybe coincidentally, maybe not, are now owned by my previous employer in a multi-billion dollar acquisition. My fee wasn't even in the round off error.

It's nice to be good at something, right?

So this attorney pushes a copy of an email at me and asks me if I wrote it. It's got my name and email address in the from field and it looks like something I would have written but heck, I don't remember writing it. It was 12 years ago. My answer is "I don't remember." Am I being a uncooperative jerk or just truthful? Attorneys are experts in making something look like something that it isn't or vice versa. There's no upside in me helping them do that by saying "yeah, it looks like something consistent with what I would have said" and that's just the nature of the system and has nothing to do with me being evasive. If you want to say that you can prove that it came from my computer at a time when you can prove that I was sitting at it and it was related to something I was just working on when it was sent then go for it. If you ask me if I wrote it 12 years ago, I don't remember.

There's nothing untruthful, uncooperative, or remotely wrong with that. When you don't remember, you don't remember. Period. To give any other answer would be dishonest.

But, suppose you had given your assistant a handwritten note and asked him to email that note. When you're asked at a deposition, "did you write that e-mail," you can quite truthfully say "no." But...think about how that looks when it comes out that the real answer is "my assistant wrote the email, but I told him what to say." There's nothing to be gained by doing that, and a whole lot to be lost.

It's one thing to approach litigation from an adversarial standpoint - anybody that does otherwise is a fool (except in certainly incredibly limited circumstances). It's a completely different thing to approach it with the intent to mislead, lay roadblocks, etc.

Take your pick as to which category "I've never heard of 'photocopy' because I've only ever called it a 'xerox'" falls into....

 

[JeffDG]

Amazingly, the definition of "copy" is not universal, and is actually quite important in copyright cases.

Take for instance a situation where you download and install a piece of software on your computer. The software permits installing for 30 days as a demo, but states that you need to purchase or uninstall after that time period.

Well, you forget to uninstall, but never use it after the first week...are you infringing the software publisher's copyright? The answer is not definite, but here's my take on it...

No. You copied the product at the time of download, and had permission of the publisher at that time to do so. The fact that it sits on your hard drive is not an act of copying. Run the software after the trial period expires, however, and it copies the code from the hard disk to RAM to execute and voila...copyright violation.

 

[Obi Heed Kenobi]

Amazingly, the definition of "copy" is not universal, and is actually quite important in copyright cases.

Take for instance a situation where you download and install a piece of software on your computer. The software permits installing for 30 days as a demo, but states that you need to purchase or uninstall after that time period.

Well, you forget to uninstall, but never use it after the first week...are you infringing the software publisher's copyright? The answer is not definite, but here's my take on it...

No. You copied the product at the time of download, and had permission of the publisher at that time to do so. The fact that it sits on your hard drive is not an act of copying. Run the software after the trial period expires, however, and it copies the code from the hard disk to RAM to execute and voila...copyright violation.

A similar kind of issue arose in regard to books that would be sent, unsolicited, by mail. For instance, a company would send you a package with a book inside. Along with the package would be a note saying, "by not returning this, you agree to pay for this book."

What happened if you never opened the package and just threw it away (or never got it, or just left it sitting on your desk, etc.)? Would you have to pay for the book?

Talk about a scam. It resulted in some pretty serious litigation; predictably, I can't remember the results. This was way before my time. My generation doesn't read books.

 

[JeffDG]

A similar kind of issue arose in regard to books that would be sent, unsolicited, by mail. For instance, a company would send you a package with a book inside. Along with the package would be a note saying, "by not returning this, you agree to pay for this book."

What happened if you never opened the package and just threw it away (or never got it, or just left it sitting on your desk, etc.)? Would you have to pay for the book?

Talk about a scam. It resulted in some pretty serious litigation; predictably, I can't remember the results. This was way before my time. My generation doesn't read books.

Read up on "Click-Wrap" or "Shrink-Wrap" licenses.

 

[EdFred]

Read up on "Click-Wrap" or "Shrink-Wrap" licenses.

Oh yeah, the license where you agree to it by opening the shrink wrap, but can't actually read it because you have to.....open the shrink wrap.

 

[Stevel]

A similar kind of issue arose in regard to books that would be sent, unsolicited, by mail. For instance, a company would send you a package with a book inside. Along with the package would be a note saying, "by not returning this, you agree to pay for this book."

I believe the official FTC term for this is a "gift".