“Handling Depositions & Litigations” with Mark Furman of Tarlow Breed Hart & Rodgers

Jeffrey (1s):
Welcome back to Radio Entrepreneurs. My name is Jeffrey Davis, and again, I am the host of Radio Entrepreneurs, also chairman founder of Mage LLC. And every week for the last few years, we like to check in with attorney Mark Furman of Tarlow Breed Hart and Rogers. Welcome back, Mark.

Mark (23s):
Hi there Jeffrey. Great to be with you.

Jeffrey (24s):
Great to be with ou too. It’s nice that it’s the summer. I hope you’re enjoying yourself. You’re down to a three handicap, correct?

Mark (36s):
Not quite Jeffrey, but we work at it. That’s just the first hole. That’s right,

2 (42s):
Mark. We’re going to be talking about something that every entrepreneur probably has to deal with at least once in their career that we all dread and that is depositions, correct?

Mark (57s):
Yes. Depositions and, and litigation in general, you know, it’s awful to have to have a business dispute. You know, people are in business to do business and business owners are an optimistic group of people and they’re very focused on all the positives, everything that can go right with a deal and some, you know, what lawyers do they pour cold water on deals. A little bit, a little bit of a balance there because we’re trying to focus on what can go wrong and sometimes things can go wrong.

Mark (1m 38s):
And when they do, you end up in some kind of a dispute, whether it’s an arbitration or a litigation, and our job is to try to solve the problem as quickly as inexpensively as possible. Although the system is not really set up to be either quick or inexpensive, it’s set up for the pursuit of justice, irrespective of the cost in, in many ways.

Mark (2m 18s):
And it doesn’t happen quickly, particularly in this era of emails and which has created the world of electronic discovery. Well, let

Jeffrey (2m 30s):
Me just add one thing to it because you know, entrepreneurs try to be people of action, get things done, move things along. And you know, that probably the biggest complaint I do get from entrepreneurs who were into the legal process is the time that they can’t control the clock and they get so frustrated with the process and they start making mistakes. Isn’t that correct?

Mark (2m 55s):
Yes. And it is an inherently frustrating, slow process. And, you know, and, and frequently litigation takes years to resolve. And, you know, people want to resolve it quickly because entrepreneurs make a hundred decisions a day. They make them, and then they move on to the next issue in, in a dispute legal dispute. You’re stuck in the process until it’s resolved by third party or settled.

Mark (3m 35s):
And that, and in the, in a fewer defendant who’s been sued and you don’t have a counterclaim. There is no wind. It’s just degrees of loss because under the American rule, unless the contract provides otherwise each point with rare exceptions, each party is responsible for their own legal fees and legal fees are expensive. In many cases, require expert witnesses. And they’re very expensive too. And the process is for business owner, slow time consuming.

Mark (4m 16s):
So unless you are interested in delay and that’s one of your goals for whatever reason, it’s very frustrating because once you file a complaint or a complaint is filed against you, each side has a, the defendant has a right to try to move to dismiss the complaint that takes months to get resolved is also discovering, which can be a morass where each side is asked to answer questions and produce documents. And then there are frequently disputes about what hasn’t been produced, what hasn’t been answered once all that’s done, you get into depositions which have changed as a result of COVID from in person, which I am certainly partial to, to a remote on zoom.

Mark (5m 16s):
They’re not as good, but they’re good enough as it is. At least they’re good enough for I’ll say witnesses other than the most important witnesses in the case. And then once discovery is over, then the defendant has a right to move for summary judgment, no need for a trial that takes months to get resolved. The whole process of summary judgment is very expensive, very time consuming, but it also creates the possibility of if you’re a defendant, not having the case go to trial, which has a risk in it because a judge or a jury is going to decide the fate of the case.

Mark (6m 7s):
So if you can get it thrown out without a trial, it’s usually better to try to do that. Then you reach the pretrial and trial stage. And, you know, there are very strict rules of evidence and it takes a ton of preparation for lawyers to get ready for trial, to go to trial. Once the trial is over, you fight about what the decision is and whether it should be set aside. And many times someone appeals, most of my cases, somebody appeals.

Mark (6m 48s):
And then you have go through this lengthy process and the appellate courts. So, you know, one of the things I try to bring to the table to clients is brutal honesty about the process and how imperfect it is, how slow it is at times of bureaucratic. It is and show that the client can make best business decision possible. When in Massachusetts, if you file a case, you have to certify that you’ve brought up the subject of all Turnitin dispute resolution to the, your client, arbitration mediation, just different ways that are a little quicker.

Mark (7m 39s):
And, and, you know, maybe we can talk about another time, more about the benefits of each of those approaches. But I like to try to talk settlement as early in the process as possible provided, I think my client’s ready and I reach a point that I can trust the other lawyer that his or her client is ready to

Jeffrey (8m 9s):
Because of, and I think there’s an emotional stress slash fatigue that happens to the entrepreneur in this process that keeps them from being objective. I mean, I find entrepreneurs to be very emotional people. Lawyers are supposed to keep their calm. How do you keep your clients cool through this whole process? And especially depositions are so hard. Entrepreneurs want to speak what they think is their truth. And don’t always hear the questions. How do you control the process? Is it more psychologists than attorney?

Mark (8m 43s):
Well, it’s, I think people need to be heard certainly, but once they’re heard you, they also need to hear, you know, what you, as a lawyer learned over practicing for in my case for decades. So, you know, in terms of what works, what doesn’t work. And I think the education of a client of not only of the process, but it’s the case because when you’re not objective, you’ll see a piece of evidence that is helpful, but you may not see how the same piece of evidence hurts you and can be used against you.

Mark (9m 33s):
So a lot of times we’re dealing with evidence that is both helpful and harmful. And do we want to use it? Should we use it to the benefits? Outweigh the negative of think of it? The way I think of it is this way. If I’m representing the plaintiff and I prove the case 50%, my client loses. If I prove the case 50.001%, my client wins everything. That’s how it works in a business case. So I’m trying to move that needle ever so slightly to get to the point where if I have the plaintiff they win.

Mark (10m 20s):
And if I’m on the defendant’s side, I’m trying to fight to a draw because if it’s only 50 50, the defendant wins under our, the way juries are instructed in civil cases in general. So it’s the little things, you know, some as, you know, Jeffrey, I can focus on details, but that’s why I’m doing it because there’s a very fine line between winning and losing. And you try the same case to two different judges.

Mark (11m 2s):
You can get a different result, the opposite result just as you have because different judges have different viewpoints just as different jurors have different viewpoints. So it’s, it’s a nuanced thing and it’s can be infuriating, but I found that brutal honesty is the best thing I can do for, for my clients. Oh,

Jeffrey (11m 31s):
We’ve been speaking with Mark Furman from the law firm of Tarlow, Breed Hart and Rogers. Again, one of the most frustrating things for any entrepreneur is litigation, but it’s a reality. I’ve never met an entrepreneur that hasn’t had to go through it at some point. And sometimes multiple times, mark, if someone’s looking for you at Tarlow breed, how would they find you? I can

Mark (11m 52s):
Be reached at mfurman@tbhrlaw.com or it’s 6 1 7 2 1 8 2 0 2 5.

2 (12m 5s):
Thank you very much. Remind everybody. This is Radio Entrepreneurs and we’ll be right back with more stories.