Saturday, October 17, 2009

Shepard Fairey Lied

Who is Shepard Fairey? Fairey is the artist that designed the famous poster to the left. He's also the guy who created the "Andre the Giant" handbill that commands you to "Obey" and is papered all over the city light posts, bridge abutments, etc.

There is an ongoing copyright dispute between the Associated Press, its photographer, and Mr. Fairey concerning the "HOPE" Obama image which Fairey developed from an AP photo. I may or may not get into the issues relating to the intellectual property disputes underlying the copyright lawsuit between Fairey, the photographer and the AP--it is very compelling. I have followed the case. Terry Gross (one of the world's great interviewers) had the AP photographer, Shepard Fairey, as well as a copyright expert on her Fresh Air program, to air out the issues--check the NPR archives to hear it for yourself. I know less about intellectual property law than I do, even about family law (bleaaah!), but I know more than the lay person--so, let's revisit the subject at another time.

What has my attention is that yesterday Shepard Fairey admitted that during the litigation, he lied. See, link: Not only does he admit that he lied, he admits he destroyed evidence and manufactured other evidence. Wow.

Generally speaking, litigant lying, perjury, spoliation of evidence is pretty heavy-shit. A local physician was up on malpractice charges. The doctor was the scion of one of our Home Town's wealthiest industrialist families--the arrogant bastard destroyed evidence of his medical malpractice and was caught out during the litigation because nursing staff kept copies of the original records. Not only did the jury hit him with a compensatory damages verdict, the punitive damages verdict for many millions of dollars was the largest verdict in local history up to that time. Moral: don't screw with the facts, the facts are the facts.

When I was a baby Bad Lawyer my closest friend was a young accountant. He, his senior partner, and their small business CPA firm were sued by the owner of a regional record retailer that had collapsed after financial irregularities surfaced that were undetected by my friend's accounting firm despite an audit. The record retailer's controller created the appearance of robust financial health by manipulating an aspect of inventory. The auditors should have visually confirmed the existence of these items but instead took the controller's/wrongdoer's verbal representation. Mistake. Malpractice.

No problem, my pal's firm had malpractice insurance, but my pal made a mistake that haunted his conscience. My friend lied during the deposition that the record retailer's attorney took in preparation for trial. My friend testified that he and his auditors had visually verified the existence of accounting items, that the company comptroller only verbally confirmed existed.

The malpractice case had not come to trial, and my pal was afraid. His senior partner, a real shit--was using my friend's mistake against him in their dealings and disaster loomed. What to do?

We looked at the procedural rules, depositions are governed by Rule 30 of Our Home State Rules of Civil Procedure. The rule permits persons to review transcripts of the the things they said under oath and change the testimony: yes to no, no to yes, add testimony, take away testimony, change anything. The caveat to this provision is that the person making the changes to his or her testimony is required set out the reason for any change, and submit to reexamination. Again this rule applies only if the attorney who took the deposition order the transcript of the discovery deposition. The record company's attorney did not order the transcript, but we amended the testimony anyway.

When my friend's case went to trial he and his firm was represented by one of Our Town's legendary civil litigators (not me, I was a spectator.) The defense was based on the idea previously explored, in the Bad Lawyer blog, that negligence requires proof of damages caused by the breach of the duty of care--consequently, the defense conceded the malpractice by my client and his firm (in effect admitting that the accountants did not visually verify inventory items that the company comptroller said existed)--but, denying that their audit mistake caused the collapse of the retailer. The defense, instead let the retailer demonstrate how out of touch he was with his business operation and employees. The jury returned a unanimous verdict for my friend, his partner and their accounting firm. Amazingly, my friend and his senior partner were able to survive this trauma, their accounting firm continued, and today, he is the sole owner, and one of Our Town's most respected accounting and financial authorities. My pal accomplished this, because he is honest and he is decent. I remain very proud of him.

Recently I successfully concluded the defense of a manufacturing company. During the discovery phase I deposed the plaintiff, and I ordered the transcript for my trial preparation and I directed it to be filed with the court. In the mail some weeks after the deposition I received a large stack of transcript "changes." In fact there were 24 separate changes to the testimony--it turns out that the Plaintiff's mother had inserted herself into the plaintiff's claim and lawsuit and she reviewed her son's testimony, sand she submitted the extensive changes over his signature. While none of the deposition changes were important, the fact that the mother involved herself so directly in her 31 year old adult son's injury claim led to a line of inquiry that resulted in developing facts that led directly to the dismissal of the lawsuit with prejudice by the court.. The mother's manipulation of the facts and evidence destroyed her son's claim, a claim valued by his attorney at $200,000 and which my client offered $40,000 to settle--now worth: $0.

Honesty in litigation is the only way the system can possibly work. Shepard Fairey has by his own admission destroyed the principle he purported to represent. By lying. Shame.

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