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True Tales from a Career Trial Attorney

11/19/2010 Daily Journal

These stories are reprinted with permission from Kurt Melchior's book "Off the Record: Sidebars from a Trial Lawyer's Life," published by Courthouse Steps Publishing in September.  

Kurt Melchior, who is a partner and general counsel at Nossaman in San Francisco, is a member of the California Trial Lawyers Hall of Fame. The 100-plus anecdotes in the book are true and share lessons learned from his almost 60 years of practice, providing an inside look at the sometimes humorous twists and turns of our legal system.

Side Bars Can Be Fun

The witness, English name and all, looked like a storm trooper. Stabbing, humorless blue eyes; high brow; slicked-back hair; and above all, a tight-lipped mouth which looked as if it had been cut into his face by the slash of a saber. He was a high officer of his corporation and he was there to make it clear to the jury that my client was scum. How to cross-examine him effectively?

I started at a low level. "Good afternoon, Mr. Pelham. We've met before."

"Have we? I don't recall."

"Don't you remember that I took your deposition in New York in this case?"

"No. I give a lot of depositions."

Score one for our side. He's showing himself as overbearing, and his deposition is taken "lots of times." His company must be in lots of litigation. Good.

"Didn't you read your deposition before coming here?" (It is essential that before a witness takes the stand, he or she must review the deposition. First of all, presumably it's the truth; and memories fade. In any event, the witness had better tell the facts at trial consistently with the deposition testimony. The lawyer who puts the witness on the stand must take it for granted that the opposing lawyer has gone over the deposition very carefully the night before, and will hang any significant inconsistencies around the witness's neck.)

"No. I didn't."

The just broke in: "Side bar!" A side bar is a conversation, most often literally at the side of the judge's bench, out of the hearing of the jury. Side bars are common. They involve the business of managing the lawsuit in regard to matters that may not be proper evidence and that therefore the jury should not hear.

We stepped around the side of the courtroom away from the jury. The judge had stepped off the bench.

"Didn't you have your witness read his deposition>?" he asked my opponent in a rather hostile tone.'

"No, Your Honor." "Why not?"

"Mr. Melchior's client is such a scum bag. He'll be mincemeat in five minutes when we get him on the stand. There was no point in wasting this witness's time." – this IMPORTANT witness's time, he obviously meant.

"Bull shit," said the judge. This conversation was off the record.

From that point forward, the case went very well. The judge had little patience with the other party. And the outcome was just fine.

The Drinking Man's Diet

Does anyone remember "The Drinking Man's Diet?" That "book" had legal consequences.

The Air Force had issued a pamphlet which provided a diet for people who had difficulty controlling their caloric intake. This material was in the public domain – no one owned it and everyone was free to use it – and it had developed a certain underground fame as a good diet.

A couple of acquaintances, advertising/promotion types, found themselves sitting together on the commuter shuttle from San Francisco to Los Angeles. "How's it going?" one asked. "Great."

"Are you still on that Air Force diet?"

"Yeah. It's a great diet. It's designed around controlling carbohydrate intake; and since liquor contains no carbohydrates, this is a diet on which you can drink all you want. It's a real drinking man's diet."

That's a great name, Joe. Did you just make that up?"

"Yes, I did."

"You know, I can sell that. ‘The Drinking Man's Diet.' I bet I could sell a couple thousand copies."

The speaker was in the promotions business. His last product had been a spot remover called "S' no Spot." By the time the plane arrived in Los Angeles, he had decided that he would sell the Air Force Diet booklet under the name "The Drinking Man's Diet." He would give his seatmate a percentage of the profits for thinking up the name. All he needed was something to put between the covers of his booklet other than just the diet itself. Any few original words would do.

From the airport he called his son in San Francisco. "Write something to make this an original work. But do it quick. Someone might beat us to the use of the name."

When Dad returned from Lost Angeles, he found that the son hadn't been able to write any few original words that looked reasonably readable or useful. Dad tried, too, but they couldn't get the hang of it. But there was an answer: Dad knew a professional writer, once with a major magazine chain but now free-lancing in San Francisco.

He went to see the writer and asked him to "write something" that made the work professional, copyrightable, protectable. Not much. 500 words? What would he pay" The writer claimed that the promoter said, "$500 or ten percent of the gross sales, whichever is more."

The writer went to work. He was diligent; he did more than put pen to paper. Professional pride caused him to produce a small text that was researched, legible and helpful. It wasn't a large effort, just a few hundred words. But it was good. Soon he had ready copy for the promoter, and a small 3x5 pamphlet with the catchy title "The Drinking Man's Diet" was born. The promoter was good at what he did; and soon one could hear about "The Drinking Man's Diet" on talk and variety shows, read about it in gossip columns and buy it at drugstores and supermarket checkout counters. Eventually, no less that 779,000 copies were sold. Only one thing had been forgotten: royalties for the writer!

Unfortunately there was no written contract. The promoter claimed that he and his son had written the text and that the writer had only polished it, rewritten it. He offered a few hundred dollars.

What was it the writer had done? Rewriting, editing, or original writing? Assuming there was no certainty about the parties' oral agreement, what was the customary method of  compensating writers? Flat fees? Royalties? On what, sales net of returns? What was the "standard royalty rate," assuming there could be such a thing? All these matters were explored in a trial which lasted many days. I brought well-known literary figured and prominent publishers to the courtroom to define the indefinable. For such things can vary greatly, and in a normal publishing business they are always defined carefully in complex author-publisher contracts. Yet here we were, trying to distill some single version of certainty out of what had started as a lark – a chance to quip on a commuter flight.

Being a writer, my client couldn't help himself. When the case was over, he naturally wrote an article about his experience, including the lawsuit, in which he quoted the promoter as saying "I can't be the only one willing to make a fast buck around here." Guess what? To get even, the promoter then sued the writer for libel!

Kurt W. Melchior is a partner at Nossaman and chair of the firm's Insurance Coverage Practice Group. He serves on the State Bar Commission for Revision of the Rules of Professional conduct. He can be reached at 415.438.7279 or kmelchior@nossaman.com.

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