Update (July 29, 2013): Beware “the challenging litigation client” (See linked Order, footnote 4). (Who doesn’t have a story of a foreign client who failed to appreciate U.S. court rules and at least caused some heartburn (or worse, a lot worse) along the way?)
Original Post (March 27, 2013): As most of us know by now, corporations are people too. But note that the word “corporation” derives from the Latin word for body, “corpus” (and not the Latin word for person). A corporations is not so much “a person” as it is “a body.” It has no mouth and no brain, for example. Its an amorphous lifeless mute blob of assets and ever-changing identities.
So how is a trial lawyer supposed to get a corporation to testify? Perhaps you think that is a no-brainer: the Chief Executive Officer, the brains of the operation, should be the corporation’s voice. That’s a start, perhaps, but many times the C.E.O. is himself a no-brainer. That is, many times, in litigation, a litigant might want to depose a corporation on minutiae about which the C.E.O. has no clue.
Actually, for all experienced civil litigators, the question of how one deposes a corporation is not hard to answer. It might be for clients. It should not be for their lawyers. And litigators will be in trouble if they do not get their arms around this body of law.
Manley Toys has not been enjoying itself, one has to imagine, in United States District Court for the District of Minnesota. See previous posts here.
Its lawyer, now, can share the pain. U.S. Mag. Judge Janie S. Mayeron has just sanctioned Manley Toys for repeatedly producing corporate representatives to testify for the corporate defendant who do not seem to know what they were asked to testify about. And Judge Mayeron, with liberal cites to the deposition transcript, does not sketch a particularly flattering portrait of Manley Toy’s lead counsel, Stephen Lobbin, a California-based IP lawyer.
Is that fair? Sometimes when a lawyer looks bad, it is because he is bad. Sometimes, when a lawyer looks bad, it is because of the client.
Lawyers represent others. When a represented party is found to have engaged in misconduct, whether intentional, reckless, or negligent, it is sometimes hard to know how to apportion blame or judgment. But lawyers should beware because the taint of misconduct, the risk to reputation, whether fair or unfair, can be hard to shake off.