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1. Posted by associate - 3 months, 2 weeks, 4 hours, 42 minutes ago

   He should have hit him.

   The first amendment gives you the legal right to say whatever you want.  That doesn’t mean you won’t get the crap knocked out of you for it though.

2. Posted by bigkapono - 3 months, 2 weeks, 4 hours, 14 minutes ago

   Re: Associate “He should have hit him”

   I’m in complete agreement.

3. Posted by Seems like that's all there was to be said. - 3 months, 1 week, 6 days, 16 hours, 37 minutes ago

   No further comments?

4. Posted by ABC - 3 months, 1 week, 4 days, 7 hours, 5 minutes ago

   My son, thank God, came back from the first desert war hale and hearty. James W. Smith is lucky Andrew Marshall was so restrained. Kudos to Judge David Sweat.

5. Posted by Maybe I'm missing it - 3 months, 1 week, 4 days, 5 hours, 58 minutes ago

   I don’t see how asking about the pin translates into a “heartless attack.” If someone is wearing a pin (any pin) I suggest to you that the wearing and display of an emblem or pin practically INVITES inquiry about the item’s meaning or significance.  “What’s your pin mean” and “where is your pin today” seem 100% reasonable to me.
   Reading between the lines, if there was any inappropriate behavior, I’d suggest you look at 1) Marshall for making some movement that led Smith to believe Marshall was going to hit Smith, and 2) Marshall for setting a deposition in his own office when he knew it might tend to be contentious.  30-years of acrimony, and you decide you’re going to depose in your own office?  Then when Marshall didn’t want his client questioned any further, he tries to order Smith to leave?  That’s not the way a depo should work, folks.  Set the depo in a neutral location, and if you want to leave, you pack your client up and you leave.  Don’t try to manipulate the length of opposing counsel’s questioning by setting it on your own turf.
   Sign me off as a Smith supporter.  Don’t know any of these parties, never even been to Georgia, but I think there’s another side to this story.

6. Posted by old timer - 3 months, 1 week, 4 days, 5 hours, 51 minutes ago

   You are missing something -compassion. It is time for the Bar to clean up its act. This jerk needed to have his license pulled as well as his butt kicked

7. Posted by MrJayR - 3 months, 1 week, 4 days, 5 hours, 32 minutes ago

   Belittled. Dimunitized.
   That is what Smith did when after 30 years, I presume knowing full well what the pin stood for, referred to it as “little” and then used it to insinuate it empowered its wearer to “browbeat” opposing client.
   Same for the second incident in which Smith insinuates the pin was what empowered the wearer to order him out of his office.
   I may about to be a 1L, but as a Gulf War Veteran and as a decent human being, I can say the comments about the pin were completely uncalled for and absolutely out of line, regardless of the circumstances.

8. Posted by A Different Pin - 3 months, 1 week, 4 days, 5 hours, 5 minutes ago

   I’ll play devil’s advocate here:  Would we be having the same discussion if the lapel pin said “McCain 08” or “Save the Trees” or “Free Tibet”, etc.?  Likely not, but perhaps we should.  Although I completely sympathize with Marshall for the loss of his son, I don’t think it’s appropriate to wear something like that during a deposition—regardless of the statement the pin makes.  Marshall should have had the common sense to take off his lapel pin during the deposition.  Would he wear it in court?  He certainly should not.  And before people jump on me and say I “don’t support the troops”, save it.  This has nothing to do with “supporting our troops” or the unfortunate death of this man’s son.  It has everything to do with one man not using common sense or understanding the unspoken rules of decorum.  (BTW, this is not to say Smith handled the situation well.  If he felt that the pin prejudiced the deposition in some way, he should have spoken with Marshall in private and asked him to remove it or re-schedule)

9. Posted by You certainly are missing it - 3 months, 1 week, 4 days, 4 hours, 56 minutes ago

   Re: “I must be missing it.”

   Yes, you are.  The initial comments about the pin - right in the middle of an contentious discovery argument - are plainly inappropriate.  It is clear Smith was not genuinely interested in the meaning of the pin but was just being nasty and crass.  The time for comments about the pin would be before the depo, or after, or during a lunch break, when little small talk can diffuse tension.  And yes, wearing a pin may naturally be expected to elicit questions.  But that certainly doesn’t therefore mean that Marshal “had it coming to him” or that the clearly nasty manner/timing of Smith’s question was anything but inappropriate - as your response suggests.  Your comment is so off base that I half suppose that you are in fact Smith himself.

   By the way, you need to re-read the judge’s order to get the facts straight.  It was not Marshal who did not want Marhall’s client questioned further - it was Smith.  Further, Marshall only told Smith to leave his office after Smith made the incidiary and shocking “where’s your pin today” comment.  Were it me, and my pin, and my son who had died in Iraq, I would likely not have asked Smith to leave but would have thrown him out the door.

   That you can defend Smith’s conduct and suggest it was in fact Marshal who was inappropriate is truly astounding - Smith.

10. Posted by sb - 3 months, 1 week, 4 days, 4 hours, 56 minutes ago

    #5, I’d say you are definitely missing it.  First, Marshall is not the one who didn’t want the client questioned, it was Smith.  I would suggest reading the entire opinion for further information that is not in the article.  Second, although under normal circumstances asking about the pin would be entirely appropriate, the entire exchange (again, in the ruling) places the statements in context.  The judge is right; the statements were intended to provoke Mr. Marshall.  Third, I hold depositions in my office, or in opposing counsel’s office, all the time.  If another attorney is a jerk and can’t be civil during a depo, I’m not backing down and holding it in a “neutral” location.  However, in my area, all the attorneys I have worked with or against have been civil; it’s just what’s expected in the profession.  Fourth, Marshall is right, and the judge ruled that way: if you object to a question during a depo, the witness still has to answer.  Smith refused to allow not only his client, but a witness who was not his client, answer questions properly before the witness.

11. Posted by sb - 3 months, 1 week, 4 days, 4 hours, 49 minutes ago

    To: A Different Pin—Even zealous advocacy of the devil could not reasonably justify Smith’s actions, as you suggest.  If I choose to wear a memento, especially a small pin, that is my right.  I would possibly expect to answer questions about it in normal, everyday conversation, but DEFINITELY NOT during a deposition.  Smith’s remarks were clearly intended to incite, provoke, and upset Marshall, and they were just plain rude.  Some law schools still teach civility as a hallmark of the profession.  Maybe you, Smith, and “Maybe I’m missing it” should have gone to one.

12. Posted by Look a liittle deeper - 3 months, 1 week, 4 days, 4 hours, 46 minutes ago

    As someone a little closer to the source in and around the Athens legal community, Mr. Marshall isn’t exactly a shining example of civility. And these two lawyers have about the most rancorous relatioship I’ve witnessed. Nothing is reported about the questions around ithese isolated 10 lines and clearly 30 years of contention bears more of a story.

    I don’t justify the remarks. I don’t contend they were not horribly inapproprate. We all know what a problem civility is in our profession, but bear in mind every story has two sides.

13. Posted by NCLawyer - 3 months, 1 week, 4 days, 4 hours, 36 minutes ago

    "Given Mr. Smith’s ignominious conduct, Mr. Marshall’s response seemed restrained.”

    I should say.  And no matter what kind of pin Marshall was wearing, Smith had no business interjecting a (snide) personal question to Marshall during Marshall’s examination of a witness during a deposition.

    Also, people wear pins on lapels, tie tacks, etc. all the time.  If the pin was unobtrusive enough that someone had to ask what it meant, then it was not disruptive.  Whereas wearing a large, i.e. readable, “McCain in `08” or “Free Tibet” button in court would be in poor taste (and possibly disruptive), regardless of one’s support for either cause.  This “different pin” example is just further illustration that what Smith did was conduct unbecoming to a member of the legal profession.

14. Posted by Splaw - 3 months, 1 week, 4 days, 3 hours, 53 minutes ago

    If you read the order you will see that the pin comments were just part of the judge’s findings.  The question has nothing to do with First Amendment rights.  Was it innappropraite conduct?  Those who say no need a remedial ethics and responsibility course immediately.

15. Posted by A Different Pin - 3 months, 1 week, 4 days, 3 hours, 48 minutes ago

    TO sb:  Read my post.  I did NOT suggest Smith’s actions were appropriate.  I’m all for civility in the profession and don’t need a lecture on that issue.  Again… read my post and, in particular, the parenthetical comment regarding Smith.  I don’t justify his actions—in fact I suspect he is a flaming jerk.  I was simply pointing out that we should examine Marshall’s actions as well and in context.

16. Posted by mm - 3 months, 1 week, 4 days, 3 hours, 10 minutes ago

    #5 - regarding your suggestion that we look at Mr. Marshall for doing something that led Smith to believe Marshall was going to hit him, there’s actually no evidence other than Smith’s statement that Marshall did any such thing.  For all we know, Smith said that just to get something damaging on the record about Marshall.  I mean, that’s the thing about deposition transcripts, right?  They only reflect what people say.  I could shout out “Don’t shoot! Stop pointing that gun at me!” regardless of whether anyone in the room has a gun.

17. Posted by Andrew Marshall - 3 months, 1 week, 4 days, 1 hour, 12 minutes ago

    Comments from Marshall:  #5:  You haven’t read the order and are confused. The comments about the pin characterized as a “heartless attack” occurred after the deposition of the witness ( the second deposition) had been terminated when the witness refused to answer a question (upon Smith’s request) which the court ruled was a proper question.  You are also confused when you refer to Marshall not wanting his client questioned any further. Marshall was doing the questioning of an adverse witness, not attempting to manipulate the length of questioning by opposing counsel.  (8) I wonder if you would feel the same way if you had a son who was an infantryman killed in action while serving our country. I wear this pin every day and in all circumstances to honor the service and sacrifice of my son. If your ideas of common sense and “the unspoken rules of decorum” suggest that this is not appropriate, you are entitled to your opinion. I will continue to wear my pin in court, during depositions, and in other circumstances until I take my last breath on this earth (12) Have you ever been in a deposition with me?  What is the source of your information? Let me know who you are. The judge’’s order encompasses far more than is reported in the story, and I am perfectly comfortable with anyone examining my conduct and advocatiing the other side of the story.

18. Posted by SRfrom CA - 3 months, 1 week, 4 days, 6 minutes ago

    Way to go Mr. Marshall.  I am a firm believer in the concept of “if you’ve got a problem with me, talk to ME.” The most telling part of the story as I have read it, is that Mr. Marshall was not seeking any retribution against Smith, despite Smith’s inappropriateness.  The Court felt compelled to protect Mr. Marshall.

19. Posted by R - 3 months, 1 week, 3 days, 23 hours, 47 minutes ago

    Maybe Mr. Marshall is normally a jerk - against Mr. Smith or others - and maybe he isn’t. That’s irrelevant. Jerk or not, he was wearing a pin one day to honor his DEAD SON. Why in the world did Mr. Smith see fit to ask ON THE RECORD what the pin meant in the first place - EXCEPT that Mr. Smith ALREADY KNEW what it meant and just wanted to fluster Mr. Marshall.

    Then, having been told what the pin meant, Mr. Smith has the unbelievable gall to chide Mr. Marshall for NOT WEARING the pin at a subsequent deposition: in essence, accusing Mr. Marshall of NOT HONORING his son that day! There’s simply no other explanation of why he asked, “Where’s your pin today?” He was saying, in so many words, “Aren’t you honoring your son today?”

    To equate a personal memorial of this nature to a campaign button is grotesque.

    Again, I have no idea whether Mr. Marshall or Mr. Smith or both of them are normally idiots or paragons of virtue. But on this issue Mr. Smith deserves contempt and condemnation for a heartless, callous and unpatriotic act. Shame on him. And shame on those here who defend his outrageous statements.

20. Posted by Paul - 3 months, 1 week, 3 days, 22 hours, 39 minutes ago

    "I don’t think it’s appropriate to wear something like that during a deposition—regardless of the statement the pin makes.”

    Yeah, all depositions should be done in the nude, in undecorated white rooms, to avoid extraneous distractions which might possibly be blamed for one lawyer’s incivility.  Uh huh. 

    How about this: “There are some lines which ought not to be crossed: Insulting relatives of attorneys, questioning the legitimacy of one’s opponent’s parentage, kicking an opponent’s dog, etc.” The whole premise of the law is the orderly resolution of disputes without violence.  Thus, it is not appropriate for an attorney to try to incite violence.

21. Posted by William Hintze - 3 months, 5 days, 14 hours, 56 minutes ago

    Mr. Marshall - God bless your son, and you.  I’m an Army reservist, and I’m lucky to practice in San Antonio, a military -friendly city.  The attorneys I deal with, across the political spectrum, are respectful of those who serve in uniform.  I cannot imagine someone mocking opposing counsel’s dead son, regardless of how contentious the litigation was.  You showed great restraint.  If you’re ever in San Antonio, I’d be honored to buy you a drink and shake your hand.