Wednesday, March 23, 2011

Copy Machines and the Law: Deep in the Details

One criticism of lawyers is that we have a tendency to obsess about details -- and, by doing so, we sometimes obscure the more important "big picture."

In some instances, the critique is accurate (although, to be fair, details matter, and many misunderstandings stem from miscommunication about the details; a good transactional lawyer helps clarify the important details "up-front," so that ambiguity does not lead to disputes later).


Now comes a report from Ohio (the Cleveland Plain Dealer has the story here) about a lawsuit in which the lawyers dug (very) deep into the detail-weeds. 

At issue was whether real estate deeds kept at the County Clerk's Office should be readily available, to the public, at a reasonable cost.  During a pre-trial deposition, the question arose of whether the Clerk's Office had a photocopier that enabled members of the public to make copies of deeds. 

You'd think the question "Does the office have a photocopier?" doesn't suffer from lack of clarity, but in this case you'd be wrong. 

Here's a portion of the deposition transcript, as published by the Plain Dealer:
What follows is a transcript of the deposition of Lawrence Patterson, acting head of information technology for the recorder's division of the county fiscal office. The questioner is attorney David Marburger, who filed the lawsuit on behalf of title companies. Another attorney, Matthew Cavanagh, represents the county and raises objections.
Patterson: When you say "photocopying machine," what do you mean?

Marburger: Let me be -- let me make sure I understand your question. You don't have an understanding of what a photocopying machine is?

Patterson: No. I want to make sure that I answer your question correctly.

Cavanagh: Dave, I'll object to the tone of the question. You make it sound like it's unbelievable to you that he wouldn't know what the definition of a photocopy machine is.

Marburger: I didn't ask him to define it. I asked him if he had any.

Patterson: When you say "photocopying machine," what do you mean?

Marburger: Let me be clear. The term "photocopying machine" is so ambiguous that you can't picture in your mind what a photocopying machine is in an office setting?

Patterson: I just want to make sure I answer your question correctly.

Marburger: Well, we'll find out. If you can say yes or no, I can do follow-ups, but it seems -- if you really don't know in an office setting what a photocopying machine is, I'd like the Ohio Supreme Court to hear you say so.

Patterson: I just want to make sure I answer your question correctly.

Cavanagh: It's not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, that uses scanning technology.


Marburger: Not in my judgment. Do you have photocopying machines at the Recorder's office? If you don't know what that means in an office setting, please tell the court you don't know what it means in an office setting to have a photocopying machine.

Patterson: I would like to answer your question to the best of my ability.

Marburger: I'm asking you to answer that.

Patterson: So if you could explain to me what you mean by --

Marburger: I'm not going to do that because I want you -- I want to establish on the record that you really don't know what it is. I want to establish that. Now, do you know what it is or do you not know what it is? Do you understand what that term means in common parlance or not?

Patterson: Common parlance?

Marburger: Common language.

Patterson: I'm sorry. I didn't know what that meant. I understand that there are photocopying machines, and there are different types of them just like --

Marburger: Are there any in the Recorder's office?

Patterson: -- there are different cars. Some of them run under gas power, some of them under electric power, and I'm asking if you could help me out by explaining what you mean by "photocopying machines."

Marburger: That's a great point.

Patterson: -- instead of trying to make me feel stupid.

Marburger: If you feel stupid, it's not because I'm making you feel that way.