The Sports & Entertainment Law Playbook

The Oscars are happening this weekend, so it's a good thing that I finally got around to seeing The Social Network (the one about how Facebook started), which is one of the best-picture nominees. What a great film. Great acting (Justin Timberlake notwithstanding). Great directing. Great cinematography. But bad depiction of what is called the discovery process, in pre-trial civil litigation. With all due respect, the writers did a great job of telling the storyline through the characters as they were purportedly being deposed; those depositions were a result of two lawsuits filed against Facebook's founder and CEO, Mark Zuckerberg. Despite the lack of realism in the depositions themselves, the overall storyline is quite realistic insofar as both lawsuits are settled, and there are no court trials.

Given the rising costs of litigation, and litigants' need for closure and certainty, among other things, about 98% of all civil cases don't go to trial. Many of these cases are settled, many are dismissed, for one reason or another, but no matter what happens to each of the cases that don't go trial, they are invariably disposed of because of evidence that comes to light during the discovery process. The discovery process is basically the time period starting after a lawsuit is filed, lasting until a certain date that the court sets prior to a trial. During this time, both sides exchange information and documents, and usually each side takes at least one deposition, which is akin to an out-of-court examination of a witness. Depositions are taken under oath, and usually recorded by a stenographer, or sometimes by video.

Although depositions are similar to trials to the extent that attorneys ask questions of witnesses, and the witnesses have to answer truthfully, that's about as far as the similarity goes. This is because depositions aren't really about winning your case per se; their purpose is to gather as much information as you can about the other side's case: What do they know? Who knows what? Why do they think they are going to win? Because the purpose of the deposition is to gather information, the deposing attorney's style and demeanor usually needs to be quite different than what you'd see on Boston Legal, Law & Order, or any other courtroom drama.

But there is one problem with learning how to take and defend depositions effectively. They don't teach it in law school, and the only way to learn how to do it, is to jump right in and try. Unfortunately, although having deposition experience helps an attorney to become comfortable with basic questioning techniques, it does nothing as far as teaching proper questioning techniques. Some attorneys are lucky enough to have a seasoned litigator take them under their wing, to teach them the ins and outs of depositions, but it's been my experience that they are the exception rather than the rule. If you don't have that opportunity, the only way to really learn how to be effective in depositions is by studying books, and taking special classes. Recently, I attended an intense, advanced deposition skills workshop, presented by the National Institute of Trial Advocacy, and despite having attended, taken, and defended countless depositions over the past few years, I was amazed at how much I learned.

The bottom line is this: Because 98% of civil cases are determined before trial, an attorney's knowledge and experience in preparing for, and taking and defending depositions is more critical now than ever. An attorney who is savvy in the deposition and discovery process can oftentimes mean the difference between leveraging a settlement and going to trial, or perhaps worse (or better, depending on which side you're on) having the case disposed of on summary judgment.

It's hard to say whether Zuckerberg's attorneys were deposition savvy or not, in The Social Network. It's probably best not to even think about it, though, because good or bad, the attorneys' roles in the film don't have any effect on the overall quality of the film. I hope it wins every category for which it was nominated.

And then there were five…

Yesterday, the U.S. Attorney for the Northern District of California filed a third superseding indictment inUnited States v. Barry Lamar Bonds, reducing the number of felony charges to five (click the image to download a pdf copy). These are essentially the same charges comprised in Bonds' original indictment, back in November 2007, however, about six months later, prosecutors bumped it up to 15 counts. The allegations in those additional 10 charges were purportedly based on evidence the FBI obtained from documents and records seized at the home of Bonds's personal trainer, and longtime childhood friend, Greg Anderson. That evidence—regardless of whether it's overwhelmingly persuasive of Bonds's guilt—is inadmissible unless someone with personal knowledge gives court testimony to authenticate it.

Several professional athletes, including former American League MVP Jason Giambi, have testified—and will testify at trial—that Anderson supplied them with steroids. Nevertheless, Anderson's attorney, Mark Geragos told the court that his client will not testify, even if that means going back to prison. Anderson has already spent more than a year in federal lockup after the court held him in contempt for refusing to testify against

Bonds (2 weeks in July 2006; Aug. 28–Oct. 5, 2006; and Nov. 20, 2006–Nov.15, 2007). And this was in addition to the time Anderson served after he pleaded guilty to distributing steroids in 2005. U.S. District Judge Susan Illston ordered Anderson to appear March 1st, and if he still refuses to testify at the March 21st trial, the judge says she'll send him back to prison for the duration of the trial, which is expected to last a month. But given the amount of time that Anderson's already spent in prison on Bonds's behalf, the threat of going back to prison for a month isn't likely to change his mind.

As an aside, who is supposed to be paying Geragos's bill? Anderson's career went south shortly after the BALCO scandal was tied to Major League Baseball, in 2003. But isn't paying Geragos's bill the least Bonds can do for his friend under these circumstances?

So what impact will the new indictment have on Bonds's case? Probably very little. Bonds in still charged with four counts of making False Declarations Before a Grand Jury (a/k/a perjury), and one count Obstruction of Justice. The latter charge carries a maximum prison term of 10 years, though, based on the Federal Sentencing Guidelines it would be unprecedented for Bonds to get a sentence even close to that. Legal experts, including sentencing guidelines guru Doug Berman, are speculating that if convicted Bonds would more likely face 24–30 months in prison. ESPN's Roger Cossack estimated 6 months. With all due respect to Mr. Cossack, I disagree.

The Federal Sentencing Guidelines are ridiculously complex (there are people who make a living studying and teaching their subject matter). The guidelines work by setting a base level sentence for each specific offense, and then provide circumstances for deviating, up or down, from that base level. The range is also adjusted based on the convict's prior criminal history (not a factor here, because Bonds has none). In a nutshell, the base level sentence for Obstruction of Justice is 15–21 months. To complicate matters, however, if the jury finds that the obstruction "resulted in substantial interference with the administration of justice," the base sentence jumps to 24–30 months, as this California newspaper estimated. Unless the U.S. Attorney's Office files a motion to have the sentence reduced, I don't see anything in the guidelines that would do so. In sum, I'm not sure how Mr. Cossack arrived at six months.

Not to sound like a weatherman, but the statutory range of Bonds's sentence is more likely 15–30 months. This assumes, however, that all of his sentences run concurrent, rather than consecutive, which is probable. The longest prison sentence related to the BALCO scandal was six months, to Marion Jones. Anderson served three months, and Victor Conte served four. But all three were sentenced pursuant to plea deals with the U.S. Attorney. Bonds is putting the government through a lengthy and costly trial, and he's not exactly a sympathetic figure. If I had to bet, I'd guess that Bonds's sentence would be the minimum, but within the guidelines. In any case, longer than six months. The key factor will be whether the jury finds that Bonds substantially interfered with the administration of justice, which, at the low end of the guidelines, would nearly double his sentence.

Having said that, a conviction is by no means a certainty. To convict, the government must prove that Bonds intentionally lied about material facts. This is fairly tough to do, which is why perjury trials aren't very common. Convictions do happen, though. For example, in 2009, a jury convicted Olympic track coach Trevor Graham of lying to federal agents about steroid distribution, the judge sentenced him to house arrest. And in 2007, a jury convicted Scooter Libby of charges substantially similar to Bonds's.

The United States Patent & Trademark Office (USPTO), in Washington, D.C. has temporarily foiled Sarah Palin's plans to receive trademark protection for her name. (See U.S. Trademark Application No. 85170226 pdf file). The reason for the agency's disposition: She (or her attorney) forgot to sign the application. Seriously? That sounds like a WTF moment to me.

Registration is refused because the applied-for mark, SARAH PALIN, consists of a name identifying a particular living individual whose consent to register the mark is not of record. Trademark Act Section 2(c), 15 U.S.C. §1052(c).

According to Reuters news, Thomas Van Flein—the attorney who filed the trademark applications on behalf of Sarah and Bristol Palin—has been relieved of his services with the Alaska law firm of Clapp, Peterson, Tiemessen, Thorsness, Johnson, LLC. At the time of this posting, Van Flein's bio was still on the firm's website, but could only be accessed using the URL http://www.akcplaw.com/thomasvanflein.asp. Reuters reported that attorney John Tiemessen has assumed control of the matter. Neither Tiemessen nor Van Flein are noted as having any experience in trademark law, though I'm not sure that trademark experience would have prevented the obvious error in the Palins' USPTO applications.

Actually, there was another reason that the USPTO denied the application. You can't get trademark protection arbitrarily, because you have a good idea (regardless of whether it's original), or because you figured out how to send in the application and filing fee. Part of the reason for this is that the policy reason for trademark protection isn't so much about the owner of the mark, it's to protect consumers from the likelihood of confusion with regard to the source or purveyor of goods and services. This is a whole topic in and of itself, but what it means is that trademark protection is only afforded to those who demonstrate bona fide use of the mark in the ordinary course of trade. Quite simply, the Palins failed to show any bona fide use in their trademark application:

In this case, the specimen submitted for the “Information about political elections” is a news story on the Fox® Network about Ms. Palin. The specimens submitted for the “Providing a website featuring information about political issues” are postings on Facebook®. The specimen does not show use of the mark as “providing a website featuring...” Rather[,] the proposed mark merely appears as a posting name...

 

None of these specimens show use of the mark SARAH PALIN in relation to the services specified of “Information about political elections” and “Providing a website featuring information about political issues."

The Palins have 6 months to amend their application, and resubmit it to the USPTO together with another filing fee. If they don't, the trademark office will deem the mark(s) abandoned. No word on whether the Palins intend to sue their former attorney for malpractice—however, if they do decide to sue, their current attorney specializes in professional malpractice (conflict of interest notwithstanding). It is also unknown whether Levi Johnston, Bristol Palin's somewhat estranged former fiancé, is also seeking any kind of trademark protection—for his name, or his "junk."

First Amendment proponents are applauding yesterday's NJ Supreme Court decision, which dealt an apparent blow to privacy advocates by holding that the fact that a conviction was expunged does not negate its truth for the purposes of using it as a defense to defamation. As I explained here, defamation claims are not common because they are difficult to win. There are four elements of the claim, and even if you can prove all four elements, the defendant can still escape liability by showing that the allegedly defamatory statements were true. In attorney-speak, we say: truth is a complete, or absolute defense to defamation. That sounds pretty straight-forward, right? After all, doesn't everyone know the difference between the truth and a lie? As more than one of our recent U.S. Presidents can attest, sometimes truth isn't so black and white.

Expungement is the process of sealing the record of a criminal conviction, usually for first-time offenders. Expungement is not a constitutional right; it's created by statute, under state law. In fact, I am aware of only about a dozen states that allow it. And in each state that does allow it, different rules and requirements apply. Also, each state treats the effect of an expungement differently. For example, some states, like Washington, treat an expungement as though the crime never occurred. If you get an expungement in Washington State, state law gives you the right to tell anyone that you were not convicted of the crime in question. Similarly, for most purposes, the state of Ohio treats an expunged conviction as though it never happened, however, in some limited circumstances, the record of conviction may be later accessed by courts or law enforcement. Needless to say, not every crime is eligible to expungement, and not every convict is entitled to one. Generally speaking, serious crimes, violent crimes, and sex crimes cannot be expunged.

In the case decided yesterday by the NJ Supreme Court, the plaintiff (known only as G.D.) sued former state senator Bernard Kenny and the Hudson County Democratic Organization for defamation, based on their printing of campaign flyers stating that the plaintiff was a convicted drug dealer. G.D. was in fact convicted of drug possession back in 1993, and he served about 8 months in prison out of a five-year sentence. But G.D.'s conviction was expunged in 2006.

Justice Barry T. Albin delivered the court's opinion:

The relief provided by the expungement statute, however, does not include the wholesale rewriting of history. A person convicted of a first-time crime may petition for expungement of all records and information” relating to the conviction after the passage of ten years from the date of the conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later. (quoting N.J.S.A. 2C:52-2(a)). A court order of expungement does not result in the destruction of criminal records.

For anyone keeping score, Justice Albin is a democrat (McGreevey appointee); he also happens to be a former criminal law attorney, past president of the New Jersey Association of Criminal Defense Lawyers, and served on the court's Criminal Practice Committee from 1987 to 1992. He continued to say that:

Common sense tells us that an arrest or conviction may become general knowledge within a community and that people will not banish from their memories stored knowledge even if they become aware of an expungement order. And long before the entry of an expungement order, information about an arrest and conviction may be compiled by data aggregators and disseminated to companies interested in conducting background checks.

Although the court's ruling isn't likely to impact criminal law much, if even at all, it will serve as one more potential hurdle that a plaintiff must clear to successfully make a case for defamation.

Download pdf of the NJ Supreme Court's decision in G.D. v. Kenny, et al., No. A-85-09 (Jan. 31, 2011).