Evan Schaeffer's Legal Underground

"Wipe that Smirk Off Your Face!" And Other Things Plaintiffs' Lawyers Don't Really Say to Opposing Counsel

"My co-counsel Ron Motley and I have filed a lawsuit against the tobacco industry on behalf of the State of Mississippi to get the state reimbursed Medicaid costs for treating people with smoking-related illness. If you'd be interested in talking to us, we'd certainly like to talk to you."

--Colm Feore as Dickie Scruggs in The Insider

In the quoted passage, the actor who portrays real-life plaintiffs' lawyer Dickie Scruggs is talking to Jeffrey Wigand, the tobacco-company "insider" played by Russell Crowe. It's not many movies that could make a line about a Medicaid-reimbursement lawsuit sound dramatic. 

Additional drama in The Insider is provided by the actor who portrays plaintiffs' lawyer Ron Motley. As Motley is conducting a deposition of Jeffrey Wigand, a tobacco lawyer interrupts with an objection.  "We've got rights here," the tobacco lawyer says. Motley responds:

Oh, you've got rights. And lefts. Ups and downs and middles. So what? You don't get to instruct anything around here. This is not North Carolina, not South Carolina, nor Kentucky. This is the sovereign state of Mississippi's proceeding.  WIPE THAT SMIRK OFF YOUR FACE! Dr. Wigand's deposition will be part of this record. And I'm going to take my witness's testimony whether the hell you like it or not.

You go, Mr. Plaintiffs' Lawyer! At the end of the movie, this notice appears: "Although based on a true story, certain events in this motion picture have been fictionalized for dramatic effect." But certainly the fictionalization wouldn't apply to the portrayal of a deposition that actually happened. Right?   

Wrong. If you read the actual deposition, you'll find that Motley's heated speech was the product of Hollywood screenwriters. During the actual deposition, the lawyers were polite to each other, generally speaking. Perhaps Overlawyered.com wasn't far off the mark when it called The Insider a "portentous litigation epic."

Lawyers don't normally yell at depositions quite so loudly as Ron Motley is portrayed as doing in The Insider. And if you tell another lawyer to "wipe that smirk off your face," it's probably not going to happen like it does in the movie.

But the following back-and-forth did actually happen, and I think it's probably a good summary of the Motley style:

Q. [By MR. MOTLEY to MR. WIGAND] Sir, at any time did you learn that Brown & Williamson was using a form of rat poison in pipe tobacco?

MR. BEZANSON: Object to the form.

A. Yes.

MR. MOTLEY:

Q. What form of rat poison is that, sir?

MR. BEZANSON: Object to the form.

A. It is a compound called coumarin. It was contained in the pipe tobacco --

MR. BEZANSON: Object on trade secret grounds and instruct not to answer.

MR. MOTLEY: You are objecting that the man is revealing that you used rat poison as a trade secret?

You may answer, sir.

MR. BEZANSON: Object to the form.

MR. MOTLEY:

Q. Go ahead. If they used rat poison in pipe tobacco that human beings were taking in their bodies, I want to know about it. Will you tell me about it, sir?

More about The Insider:

• What's Jeffrey Wigand up to these days? You can find out at his website, www.JeffreyWigand.com.
• The Vanity Fair article on which The Insider is based is here.
• Finally, there is a rumor among plaintiffs' lawyers that Ron Motley's friends tried to persuade Danny DeVito to play Motley in the movie, as a sort of joke.  Although I've heard this rumor more than once, I have no idea if it's true.

UPDATE 2/24/15  This post was originally published on 9/6/04. Broken links have been updated; links that couldn't be updated were deleted. Ron Motley died in 2013. The other day, I happened to read an article about Motley's death by John Schwartz at the New York Times: "Ron Motley, Who Tackled Big Tobacco, Dies at 68." It's there I learned that even though Motley didn't say the line that's the subject of this post, he might be remembered for it anyway. Writing about The Insider, Schwartz says, "Mr. Motley was played by Bruce McGill, and his bellowed 'Wipe that smirk off your face!' to a tobacco industry lawyer stands out as a moment of high drama in the film."

From My Sketchbook

This is Lone Peak at Big Sky, Montana, drawn from a photo. I'll be headed there next week. Weather permitting, the Lone Peak Tram will be taking me to the very tip of the mountain. It's possible to ski off the front side--the one that's pictured--but I ski off the back.

In related posts, I once did some research into ski-lift accidents, which made its way into "Advice to Law Firm Partners #8." And, of course, there was my "Video-Podcast Made While Skiing," filmed back in the days before iPhones and GoPro's--but still tons of fun anyway!

Mark Twain on Mardi Gras, circa 1883

From Life on the Mississippi (1883):

The largest annual event in New Orleans is something which we arrived too late to sample--the Mardi-Gras festivities. I saw the procession of the Mystic Crew of Comus there, twenty-four years ago--with knights and nobles and so on, clothed in silken and golden Paris-made gorgeousnesses, planned and bought for that single night's use; and in their train all manner of giants, dwarfs, monstrosities, and other diverting grotesquerie--a startling and wonderful sort of show . . . There is a chief personage--"Rex;" and if I remember rightly, neither this king nor any of his great following of subordinates is known to any outsider. All these people are gentlemen of position and consequence; and it is a proud thing to belong to the organization; so the mystery in which they hide their personality is merely for romance's sake, and not on account of the police. ...

This Mardi-Gras pageant was the exclusive possession of New Orleans until recently. But now it has spread to Memphis and St. Louis and Baltimore. It has probably reached its limit. It is a thing which could hardly exist in the practical North; would certainly last but a very brief time; as brief a time as it would last in London. For the soul of it is the romantic, not the funny and the grotesque. Take away the romantic mysteries, the kings and knights and big-sounding titles, and Mardi-Gras would die, down there in the South . . .

So, to this weekend's revelers, in New Orleans, St. Louis, Memphis, Baltimore, and wherever--Happy Mardi Gras!

Related posts:

1. Legal Underground Podcast #48 (my return to New Orleans after Katrina)

2. Weekly Report #23: Keep Your Mouth Shut, Fool

3. Somewhat Famous Law Clerks in History #1

Types of Lawyers #12: The Lawyer Who's Writing a Legal Thriller

There’s one thing he knows for sure: once his legal thriller is published and the royalties are pouring in, his life is going to significantly improve. Wasn’t Turow able to cut way back on his hours? And didn’t Grisham quit the practice altogether? When his legal thriller is published, he won’t be settling for anything less. 

He imagines the shock his clients will feel the day he’s finally able to tell them all to go to hell. Yes, things are going to be very good indeed. Didn’t he always say he was destined for greatness? It’s something he’s known since he was eight or nine, when he wrote it on a scrap of paper that has since been preserved by his mother in a frame hanging over her kitchen window: “Someday, I’m going to be really, really famous.”

Yesterday, he indulged himself in a little daydreaming about how his photograph will look on the book’s back cover. Should he smile?  Or should he adopt the ponderous, knowing gaze of the serious author? He thinks the latter, unless it means he’ll need to grow a goatee, which his wife ruled out two weeks ago.   

A remaining question is how long it’s going to take him to finish the book. He doesn’t like to think about this question, because it always makes him think about another: How should he start it? Frankly, that’s the question that’s really got him stumped. There’s going to be a lawyer character, of course, and the lawyer may as well be sleeping with his secretary. But what happens next? He’s not precisely sure. 

It’s a mystery, all right. But it’s nothing that a bottle of whiskey and a couple of writing guides can’t solve. After all, with success just around the corner, how can he go wrong?

[Like this post? It's one of many included in my book How to Feed a Lawyer (And Other Irreverent Oberservations from the Legal Underground). Details here.]

Related Posts:

1.  Advice to Young Lawyers #4 (How to Write a Legal Thriller)

2.  Advice to Clients of Lawyers #1 (A Lack of Imagination)

3.  Advice to Young Lawyers #21 ("I love literature of all kinds")

4.  Types of Lawyers #9: The Lawyer on the Run

5.  The "Types of Lawyers" Category--all "types of lawyers" posts

Originally published 12/7/04.

Now Lawyers Really Have Something to Brag About

I used to read lawyer websites all the time. But I must have been away--something about them seems to have changed.

Last time I looked, lawyers could brag about their settlements in only nine figures, never more.

I remember it well. You might too: "over $300 million in settlements for our clients!" and "more than $550 million in total verdicts and settlements!" and "nearly $700 million recovered on behalf of our clients!"

But all that's in the past. Now, for the first time, lawyers have surmounted the billion dollar mark!

I noticed it for the first time today. After a quick search, I turned up five.

I congratulate them all:

Colson, Hicks, Eidson

Arnold & Itkin

Worby Groner Edelman

Kelley & Ferraro ("nearly" $1 billion, but I'm letting them in the club)

Goldberg & Goldberg (ditto)

I don't know whether to groan or to applaud. After all, I'm still old enough to remember when The Six-Million Dollar Man was something to get excited about.

But not anymore! Let's hear it for the plaintiffs' lawyers!***

***Disclaimer. Of course, I'm a plaintiffs' lawyer too. Later today, I'll be giving myself a big pat on the back. Plus, perhaps, breaking out a case of Opus One--a wine that's known to be created without a single, solitary sour grape!

Update: Readers Respond. Undoubtedly, there are many of these billion-dollar-in-settlement firms. I have been informed that I missed this one: Burg Simpson.

Bob Dylan on Hendrix's Version of All Along the Watchtower

In the awesome liner notes to Bob Dylan's Biograph (1985), Dylan says what he thinks of the Jimi Hendrix version of All Along the Watchtower--

I liked Jimi Hendrix's record of this and ever since he died I've been doing it that way. Funny though, his way of doing it and my way of doing it weren't that dissimilar, I mean the meaning of the song doesn't change like when some artists do other artists' songs. Strange though how when I sing it I always feel like it's a tribute to him in some kind of way.

Dylan continues with more about Hendrix, divulging that his favorite Hendrix songs are "that song Wind Cried Mary" and Dolly Dagger.

Says Dylan, "The last time I saw him was a couple of months before he died. He was in that band with Buddy Miles. It was an eerie scene. He was crouched down in the back of a limousine. I was riding by on a bicycle . . . I don't know, it was strange, both of us were a little lost for words, he'd gone through like a fireball without knowing it, I'd done the same thing like being shot out of a cannon."

The full set of liner notes for Biograph, which includes a long essay by Cameron Crowe, isn't easily found on the Internet. I guess interested consumers will have to buy the thing, just like in the old days.

Other Bob-Dylan-Related posts on Legal Underground:

1. "Charlie Daniels Has Recorded an Album of Bob Dylan Tunes?"

2. "Bob Dylan and His Sources"

3. "Steve Earle on Townes Van Zandt" (in the comments)

4. "Weekly Law School Roundup #48: the Bob Dylan Edition" (a post from 2005--too bad so many of the links are broken . . .)

Raymond Chandler's Cure for Writer's Block

Chandler didn't bill it as a cure for writer's block, exactly. Think of it as a sort of work-around--

1. Set aside four hours every day.

Raymond Chandler

2. During this time, you don't have to write.

3. On the other hand, you can't do anything else.

See Tierney, "This Was Supposed to Be My Column for New Year’s Day," New York Times, 1/14/13. 

I'll thank my mother for the link. She sent it to me this morning, apparently thinking I suffer from writer's block.

As regular readers of this blog know, I don't believe in writer's block.

Well, not really. 

I think it was in my post "Advice to Young Lawyer's #13" that I first began to examine the concept of writer's block. I concluded that "the cause of writer’s block is always the same: a mistaken notion of self-entitlement, a touch of self-pity, and perhaps a lack of sleep." 

To cure writer's block, I proposed this solution: "Simply take your head and bang it on your desk until you either lose consciousness or come to grips with the fact that you, and you alone, must write the next sentence. Continue in this fashion, sentence by sentence, paragraph by paragraph, page by page, until your memorandum is complete."

In later posts, I proposed other cures, having concluded that the bang-your-head solution wouldn't necessarily work for everyone.

In "Cure for Writer's Block #177 (illustrated)," I advised a cure that was very similar to a common hiccup remedy. 

In "Cure for Writer's Block #57 (illustrated)," I radically suggested that those who suffer from writer's block are morons.

It's possible that in the past, I've been too harsh and dogmatic when it comes to writer's block. I might as well think about this for a little while. I'm stuck here in this room, after all, for another three hours, twenty minutes. And I really don't feel like banging my head on my desk.

A final warning. Please don't go looking for writing-block cures 1-56 and 58-177 on this blog--I haven't published them yet.

Maybe I will soon. In the meantime, happy writing!

P.S. Of the three posts I linked to above, only one of them is compiled in my book How to Feed a Lawyer (and Other Irreverent Observations from the Legal Underground). To find out which one, you'll have to buy the book--or at least examine the Table of Contents in the "look inside" feature at Amazon. Please note that if you should happen to purchase and read this book, I would VERY MUCH APPRECIATE a review at Amazon. Why? Because I recently had a five-star literary agent tell me that the lack of Amazon reviews for How to Feed a Lawyer might make it impossible for me to ever interest a publisher in anything I write ever again!!! Lacking additional Amazon reviews, in other words, my writing career is pretty much finished. And that's bad news for a guy who rarely suffers from writer's block!  

Publication note: First published 7/9/13.

From My Sketchbook

Drawn in warmer weather while lying in a hammock in the wilds of Illinois . . .

A Public Service Announcement to the Readers of this Blawg

Publication note: Originally published 3/1/04, but still as relevant today as ever.

The time has come for the author of this blawg to post a disclaimer. Henceforth, this disclaimer should be considered incorporated into everything that’s come before, as well as everything that comes after. 

Disclaimer: The author of this blawg is not fair and balanced. In fact, he is hopelessly biased. He will make no attempt to present both sides of any story. The author of this blawg is not a journalist.  He will not pretend to be a journalist while writing this blawg.   

The purpose of this disclaimer is to state the author’s biases. The author of this blawg is a lawyer. As a lawyer, he is biased in favor of other lawyers or anyone studying to become a lawyer. If forced to choose between a lawyer and anyone else, he will usually choose the lawyer. However, even though he is friends with lawyers everywhere, he is not a member of any conspiracy by lawyers to take over either the country or the world. Although he does desire power and control, he mostly wants it over his own wife. He fully understands that even in this department, the best he can hope to achieve is some freedom of movement around the house while she is sleeping. Even this will happen only if he is very quiet.

Though the author of this blawg considers all lawyers his friends, he is not always consistent when applying his friendship. He favors friendly lawyers over grouchy lawyers. As a trial lawyer, he favors trial lawyers over other sorts of lawyers. He favors lawyers who do not attempt to seek an unfair advantage over their opponents. He favors lawyers who desire civility in litigation. He favors lawyers who follow the rules. He disfavors lawyers with large egos, but realizes that actual enforcement of this bias would conflict with his other biases favoring lawyers. Thus he is willing to grant lawyers with large egos the benefit of the doubt, at least until they demonstrate that in addition to their large egos they don’t have a sense of humor.

David Lat's Supreme Ambitions: A Review

Does law school breed tiny monsters? You bet it does. Each year, another group of bright-eyed innocents enters law school, their brains filled with nothing but song lyrics, sports statistics, and perhaps a bit of Nietzche. This is scary enough, but law school transforms them into something even more perverse. After just three years, these young law students are now ambitious and ruthless baby lawyers. They can quote black-letter law, distinguish between the writing styles of "Posner" and "Scalia," and place bets on which editor of their law journal will be the next Supreme Court justice. Not only is the world theirs for the taking, they think, but so are the highest reaches of government. All they have to do is get a well-paying starter job and then wait for the earlier generations of monstrous law-school graduates to do them the favor of dying.

Exaggerated? Hardly. I myself am a textbook example of this phenomenon. In 1990, bloated with self-importance, I graduated from law school and assumed my rightful place in our nation’s democracy as a “BigLaw associate.” If had been a character in a novel, perhaps one written by David Lat, the reader would have been willing to wait a great many pages for the world to finally deliver a well-deserved smack in my face. That smack would persuade me, once and for all, that I was just an ordinary person.

In David Lat’s first novel, the fun and entertaining Supreme Ambitions, the monstrous baby lawyer who eventually gets her comeuppance is the first-person narrator Audrey Coyne, a graduate of Yale Law School. As a first-person narrator, Audrey is unreliable only in that she doesn’t fully know herself. The genre of Lat's novel most closely resembles chick lit. (Male writers, if you didn't know, aren't excluded from the genre.) Lat's novel is a fast read. With generous doses of dialogue, Audrey recounts her tale in a linear manner, chapter by chapter, beginning to end. In addition to the main action, diversionary asides include Audrey’s flirtations with co-workers, both male and female; the ins-and-outs of her job as a federal appellate clerk; and plenty of observations about fashion.