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Wednesday, June 25, 2008

Porn for Lawyers

posted by on June 25 at 10:00 AM

The city’s hired gun from K&L Gates, Paul Lawrence, has gotten a reputation during the Sonics trial for being snippy with the judge (and for having his objections routinely overruled while objections to his line of questioning from Bennett’s lawyers are regularly sustained.)

I know you can’t read anything into courtroom dynamics like that, and frankly, reading over the transcripts from the first week of the trial earlier this week shows the city has done a much better job arguing its case then comes across live. On the written page, Lawrence’s direct examination of Bennett, for example, is devastating to the Sonics’ case. With a hard-hitting series of questions about things like a warning memo Bennett sent to potential investors acknowledging all the problems with the lease, Lawrence showed Bennett knew all about the Sonics financial problems and all about the self-defeating terms of the lease before signing it.

However, there was a moment during the trial last Friday [excerpted below] when Lawrence’s grating courtroom persona—he has a terrible habit, for example, of telling the judge when its time to break—took center stage along with some sloppy lawyering. It outdid all of Lawrence’s other mini-catastrophes.

And not just because it’s such an embarrassing exchange in its own right (Judge Marsha Pechman sternly overruled Lawrence, “No, Mr. Lawrence, you are reading the rule incorrectly,” after the longwinded Lawrence saw fit to read to the judge from the rule book), but more because Judge Pechman’s decision to overrule supported a key part of the Sonics’ legal defense.

The Sonics argue that the city’s case is part of a larger “Machiavellian” plot to force the Sonics to sell. The Sonics hope that this “unclean hands” defense will taint the city’s case and lead to a dismissal.

During the following exchange, Lawrence is trying to halt Bennett’s lawyer’s damning line of questioning to former Sonics CEO, Wally Walker. The dramatic series of questions—why was Walker simultaneously consulting for the city on the Sonics case while also holding secret meetings at his house with K&L Gates attorney Slade Gorton to go over plans to force Bennett to sell?—revealed, at the least, lousy judgement by the city.

The following (delicious) excerpt from the trial—after a pompous display, Lawrence is forced to apologize to the judge—is muddled in convoluted Bleak House legal speak, but stick with it. It’s totally worth it.

Basically, what’s happening is this: Lawrence is trying to have an email rejected as hearsay, but in making his case that it’s hearsay he segues into anticipating the Sonics response that it’s not—and gets his definitions all mixed up. The judge slaps his face and, it seems to me, loudly supports the Sonics’ main defense: The idea that Walker was simultaneously consulting for the city on the Sonics case and working to force Bennett to sell.

LAWRENCE: I would object. It is a hearsay document by—it is a hearsay document. There is no evidence Mr. Walker was under a consulting agreement with the City at the time, and I don’t think it was inconsistent with his testimony either. His testimony—this is not a document under oath as required to be a hearsay exception for prior inconsistent statements.

THE COURT: You think that a prior inconsistent statement has to be under oath in order for it to be inconsistent?

LAWRENCE: I Would be happy to read the rule, your honor. The rule says for it to be a prior inconsistent statement, not related to an admission to a party opponent, sorry, I have to get my glasses on, it has to be a statement, A, inconsistent with the declarents testimony and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding or in a deposition.

THE COURT: Well, that’s when a statement is not hearsay. You just told me that this was hearsay.

LAWRENCE: I am saying it is hearsay. But to get the hearsay exception for a prior statement of a witness it needs to be under oath. This is hearsay because it is an out-of-court-statement.

THE COURT: No, Mr. Lawrence, you are reading the rule incorrectly. Hearsay is defined, and then it says what is not hearsay. That gives a definition of what is not hearsay. This is not a statement under oath, so it is hearsay. But it is not being offered for its truth, it is being offered to impeach his recollection.

[Slog note: This would be about the right the time to give it up, Mr. Lawrence….]

LAWRENCE: But his recollection was consistent with the e-mail, so it is not offered for impeachment. He agreed with exactly what this says. [They] tried to make it otherwise. But it is—My objection is that it is hearsay and it does not fall within a hearsay objection

THE COURT: So you agree with me that your reference to the rule is incorrect.

LAWRENCE: Your honor, I was anticipating their argument as to why it would fall outside the hearsay rule. I assert that it hearsay and does not fall within an objection—does not fall into an exception, and I agree what I read you was the exception to the hearsay rule.

THE COURT: Actually—

LAWRENCE: I’m sorry, your honor. You’re right. It says statements which are not hearsay.

THE COURT: It is not the exception, it is the definition of the exception.

LAWRENCE: You’re right. I apologize.

The COURT: All right. Overruled.

RSS icon Comments


It's hard to say without more context, but the Court's statements seem silly: "It is not the exception, it is the definition of the exception." Is that really a meaningful distinction?

Without more of the transcript, it's hard to tell whether the Court is right that the e-mail is being offered for impeachment and not for its truth. Maybe the scene reads very differently on paper from the way it actually played out, but this really doesn't seem like a big error on Lawrence's part.

Posted by minderbender | June 25, 2008 10:27 AM

Isn't distinguishing hearsay from testimony Litigation 101 stuff?

Having a brain fart is one thing.  Reading the definition backwards and trying to argue to the judge that black is white--as a name partner, no less--that's humiliating.

Posted by lostboy | June 25, 2008 10:52 AM

Stuff like this is a commonplace occurrence in trial, and no real weight should be put on it.

People, including lawyers, get tired doing stressful tasks all day, and brain-farts happen.

Posted by NapoleonXIV | June 25, 2008 11:09 AM

1. He's not a name partner.

2. He didn't read the definition backwards. He just defined an exception to hearsay and argued that it didn't apply. Maybe he was wrong - maybe the e-mail was only being used to impeach - but it seems to me that he was basically right and the judge was basically confused.

Posted by minderbender | June 25, 2008 11:18 AM

Minderbender, KL Gates has over 1500 lawyers with more than a third of those being partners. The firm was formed through the mergers of six major US firms, each with it's own name (ie, the Seattle firm of Preston Gates & Ellis). I do not believe any of the "name" partners are still in active practice. So, the fact that Lawrence is not a "name partner" means nothing.

Posted by Lucky | June 25, 2008 11:58 AM

Lucky, I was responding to this from comment #2:

"Reading the definition backwards and trying to argue to the judge that black is white--as a name partner, no less--that's humiliating."

This is wrong on two counts, as I pointed out - he's not a name partner, and he didn't read the definition backwards.

Posted by minderbender | June 25, 2008 12:03 PM

Somehow, I had gotten the impression that Lawrence was part of the firm name, and I didn't confirm it.  Sloppy assertion on my part.  mea culpa.

Posted by lostboy | June 25, 2008 12:04 PM

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