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my choice for building LegalEagle's website.
- I'm not a bad guy.
- I know that.
And there's emotional testimony,
I assume 85% of it is exaggeration.
- And the other 15?
- Perjury.
- Accurate.
(upbeat music)
Hey LegalEagles, it's time to think like a lawyer.
Today we are covering The Social Network,
which is a movie that I'm told is incredibly realistic.
And in fact I'm told that some of the dialogue
in this movie comes directly out of the deposition testimony
that was taken in the various lawsuits
that were filed against Facebook founder Mark Zuckerberg.
So this will be really interesting from my perspective
because I've taken a lot of depositions
and they have a kind of sound to them
so it'll be interesting to see if this movie gets it right.
As always, be sure to comment in the form of an objection,
which I'll either sustain or overrule.
And stick around until the end of the video
where I give The Social Network a grade for legal realism.
So without further ado,
let's dig in to The Social Network.
- So you were called in front of the ad board.
- That's not what happened.
- You weren't called in front of the administrator?
- Alright, so as expected,
this movie deals a lot with depositions.
What is a deposition?
A deposition is
an out-of-court cross-examination essentially.
Often people think about the only time you're under oath
as being on the witness stand in trial.
That's actually not true.
Most of the testimony that takes place under oath
takes place in a deposition.
As you can see in this particular scene,
there is a conference room
which is where most depositions take place.
And on one side of the conference room table,
you have the plaintiff and all of his attorneys.
In a major case, you're likely to get two, three, four,
sometimes five attorneys for each side.
It's not uncommon to have the entire conference room packed
with attorneys if the stakes are high enough.
And on the other side of the table,
you also have Mark Zuckerberg,
in this case the defendant with his attorneys.
Separating the two sides is the court reporter.
You can see her in the middle here.
She has her laptop open
but she is typing into a stenographer's keyboard
which is a phonetic keyboard
that allows her to type very, very fast.
What would have happened before the scene is
the stenographer would have asked Mark Zuckerberg
to raise his right hand and swear to tell the truth
and so essentially put him under oath
so that the testimony that he gives is sworn testimony
and if he lies under oath,
then effectively he can be charged with perjury.
A deposition is part of the discovery process.
What you see on TV with the trial
is only the tip of the iceberg.
There are hundreds if not thousands of hours
that go into any particular trial
of discovery where you're trying to get the facts
to support your case so that you're not blindsided at trial.
And a deposition is one of the major tools that you have
in order to get the testimony from the other side
so you know what they're going to say.
It is possible for someone
to change their testimony at trial but if you do,
then you can, quote, "impeach them"
with the testimony that they gave during their deposition.
So what we're seeing here is a spot-on representation
of what a deposition looks like
in a multi-million dollar case.
So so far so good, this is very accurate.
- She said all that?
- Mark.
- [Mark] That I said that stuff to her?
- I was reading from the transcript of her deposition.
- Why would you even need to depose her?
- That's really for us to decide.
- You think if I know she can make me look like a jerk,
I'll be more likely to settle. - Mark.
- Yeah, so it is proper
to take someone else's deposition testimony
and ask another witness what they think about it.
This is not an impeachment.
She's not contradicting Mark Zuckerburg's testimony here.
She is simply providing the other testimony
to get the witness's reaction to it.
When you see a cross-examination on TV,
it's often very, very heated
but the rules of a deposition are such
that you can basically ask whatever question you want.
The only thing you're really not allowed to ask
in a deposition are questions that are protected
by privilege but that doesn't seem to be the case here.
- Why don't we stretch our legs for a minute?
Can we do that?
It's been almost three hours
and frankly you did spend an awful lot of time
embarrassing Mr. Zuckerberg
with the girl's testimony from the bar.
- I'm not embarrassed, she just made a lot of that up.
- She was under oath.
- And I guess that would be the first time
somebody's lied under oath.
- So this may very well have been taken right out
of the deposition transcript because it's often the case
where an attorney will ask to take a break,
whether it's for lunch
or whether just to stretch your legs,
that is exactly the kind of thing that a defense lawyer,
a good one, will do so that you can have time
to break up the flow of the questions
for the plaintiff's attorney
and really just to take a break
because it's very, very mentally taxing
to be on the other end of a deposition.
And the reason I say this might be taken right out
of the deposition transcript is
at no time did any of the lawyers say okay,
we're gonna go off the record,
which is a signal to the stenographer
to stop taking down everything.
And unless you tell the stenographer to stop typing,
she will continue to take down everything that you say,
including this sort of mundane colloquy
between the defense attorney and the plaintiff's attorney
over whether they're gonna take a break or not
and then Mark Zuckerburg's alleged kind of snippy dialogue
where he's talking back to the plaintiff's attorney.
All of that could very well be on the record
because no one's said to go off of the record,
which is what you would normally say.
So I think this could be very real testimony here.
- Cameron Winklevoss, W-I-N-K-L-E-V-O-S-S.
Cameron's spelled the usual way.
- Tyler Winklevoss.
Tyler spelled the usual way
and my last name is the same as my brother's.
- Okay, here we have another deposition,
this time by the Winklevoss twins.
It would be very, very unusual to have a deposition
where you questioned two people at once.
That's probably more for dramatic effect.
I doubt that they took both
of their depositions simultaneously.
But if you go back to the beginning of that scene,
you get a really good view
of what the stenographer is doing.
She has a special keyboard, it's hooked up to a laptop,
and it writes everything down in special software.
If you are an attorney,
you can actually get a live readout of what's going on
and often that becomes very, very important
to make sure that the exact words that you want,
especially when you're dealing with a contract case
where the words matter,
but to make sure that the exact words come out
and are actually in the official record
because if the stenographer didn't hear it,
that really doesn't exist anymore.
So the stenographer is very, very important
in terms of a deposition.
And as you can kind of see
on the stenographer's laptop screen,
almost everything that you get out of a deposition
is written in the font Courier.
I have no idea why.
It's kind of hard to read
and it looks really, really archaic
but like screenwriters and screenplays,
almost everything you get out of a deposition is
in this Courier font.
Who knew?
- That's what you said?
- It was three or four years ago,
I don't know what I said.
- When did you come to Eduardo?
- I don't understand that question.
- Do you remember answering in the affirmative?
- The affirmative?
- When did you come to Eduardo with the idea for Facebook?
- It was called The Facebook then.
- This doesn't need to be that difficult.
- This is actually kind of a clever thing
that they're doing in this movie.
They're using Mark Zuckerberg's testimony
in two different lawsuits,
two depositions spaced probably months or years apart
and comparing his testimony between the two.
And in fact in the later deposition that takes place
in the darker room, what he's doing is
he's reading back Zuckerberg's testimony
from the prior lawsuit.
Often people's prior testimony will hurt them
in other lawsuits because the testimony that they gave
is good for a particular lawsuit
but it might be bad for a different lawsuit
that hinges on other facts and law.
What this shows is also a funny phenomenon
that happens often in depositions
where a witness has been over-coached,
where the witness has been told you don't want
to give in to questions even if they're easy answers.
And what Zuckerberg has done here is he has refused
to answer basically that he answered yes
to a prior question that really isn't in dispute.
If you want to see a great example of this,
check out a video called What Is a Photo Copier
put out by the New York Times
which is a dramatization of a deposition just like this one
where someone refuses to answer the question
of what is a copy machine or what is a photo copier.
- When you say photocopying machine, what do you mean?
- They were essentially coached too well
and they refused to answer
even the most simple mundane questions
and the lawyer just goes apoplectic.
- Do you have such a machine?
- Yes sir.
- What do you call that machine?
- Sometimes it's really hard to get even very simple answers
from a highly coached witness.
- There was a big project
and he was going to have to write tens of thousands
of lines of code so I wondered why he was coming to me
and not his roommates.
Dustin Moskovitz and Chris Hughes, they were programmers.
- This scene doesn't make a whole lot of sense
because this appears to be the exact same scene
of Zuckerberg's deposition.
The plaintiff's lawyer is asking questions
of Zuckerberg but it doesn't make any sense
for Eduardo Saverin to be testifying
at exactly the same deposition as Mark Zuckerberg.
What I think the filmmakers have done here
is combined two different depositions.
They're combining the deposition of Zuckerberg
with the deposition of Saverin into the same thing.
But you only get so many hours to depose the witness
that you want to depose
so you would never take up that time
by interviewing another witness on the same day
at the same time if this was a very crucial witness
as the deposition of Mark Zuckerberg would be.
So I think they just combined the two together
and it's not realistic
that Saverin is testifying essentially in the middle
of Zuckerberg's testimony here.
- This is the first time he mentioned any problem.
- Yes, it was.
- You sent 36 emails to Mr. Zuckerberg
and received 16 emails in return
and this was the first time he indicated he was not happy.
- That's correct.
You had 42 days to study your system and get out ahead.
- Do you see any of your code on Facebook?
- Sy, could you--
- Did I use any of your code?
- You stole our whole (beeps) idea.
- Fellas.
- So it's possible that Zuckerberg may have interjected
into this deposition of this other gentleman here.
It's really, really bad practice
because you don't want your witness to chime in
on someone else's witness's testimony here.
But it appears that the lawyers are trying
to get a handle on their two prospective clients
to try to prevent some interactions so it's very possible
that this is taken from real deposition
where Zuckerberg just became angry
at what the deponent was saying
and then was forced to be quiet by his own lawyer.
I should note that it is totally proper
for Zuckerberg to be present during the deposition
of these other people.
In fact, there's many reasons why you would want to do that.
If Zuckerberg is the one
who has all the crucial information,
he may need to provide that information
to his attorney to know what questions to ask
or to know where people are lying
because you often only get one shot at these depositions
and it can't wait for the testimony to be given back
to your client, to get comments back,
and then get to ask questions later.
That's not really how it works.
So it often makes sense for the party to be there
in person to give you real-time notes.
And at least with the Federal Rules of Civil Procedure,
a named party can absolutely be present
during the testimony of another witness like this.
- During the time when you say you had this idea,
did you know Tyler and Cameron came from a family of means?
- A family of means?
- Did you know their father was wealthy?
- [Mark] I'm not sure why you're asking me that.
- It's not important you be sure why I'm asking.
- It's not important to you.
- Sy.
- Yeah, so this might be taken directly out
of deposition testimony here.
The witness does not get to pick
and choose what questions he or she answers
and whether or not Zuckerberg was aware of the wealth
of the Winklevoss twins might be relevant
to a further line of questioning,
so you don't get to fight it
just because you think it's irrelevant.
You have to answer the questions that are given to you.
- I went to my friend for the money
because that's who I wanted to be partners with.
Eduardo was the president
of the Harvard Investors Association
and he was also my best friend.
- So I should point out that in this deposition,
it's very, very common in a multi-million dollar deposition
to have it being video recorded.
Part of the value of asking these questions
that a witness is likely to say are irrelevant
or just basically foundational is
that you want the witness on camera
fighting you tooth and nail
because often in a deposition,
the witnesses are not on their best behavior
because they don't realize
that their testimony might come back to haunt them.
So often they're on their best behavior in trial
in front of a jury and a judge,
whereas in front of a camera they forget it's there
and they might be kind of jerks to the other side
and you might be able to use that
to destroy their credibility later on,
especially where someone refuses
to answer a very simple question
like did you know someone came from wealth
in a situation like this.
- Eduardo, what happened after the initial launch?
- I'm sorry, Sy,
would you mind addressing him as Mr. Saverin?
- Gretchen, they're best friends.
- Not anymore.
- We already went through this on the, never mind.
Mr. Saverin.
- That's a really funny interaction
between the two attorneys.
There's no rule that requires one attorney
to refer to a witness as a specific thing or not,
but often you might just interject that
to break up their flow and to fluster them a little bit
and get them speaking in your terms
so that the record reflects things
the way you want them reflected.
- And Mark was the biggest thing on the campus
that included 19 Nobel Laureates, 15 Pulitzer Prize winners,
two future Olympians, and a movie star.
- Who was the movie star?
- Does it matter?
- That does not sound like deposition testimony,
that sounds like something written by Aaron Sorkin.
- You don't want any lunch?
- No.
- You're welcome to some salad.
- This is a really accurate scene so far.
All the partners have gone to lunch,
they're out of the office,
leaving one junior associate to basically play babysitter
with the client to make sure
that they don't do anything stupid.
- This must be hard.
- Who are you?
- I'm Marylin Delpy.
I introduced myself when we first--
- I mean, what do you do?
- I'm a second-year associate at the firm.
My boss wanted me to sit in on the deposition days.
- Very accurate.
The way that junior associates get experience is
they get to sit in on depositions like this
so they can see how it's done,
so they can learn the tactics.
And if the client can afford it,
it's a great way for junior associates to gain experience.
- Well, as CFO, I had set up some meetings
with potential advertisers.
- [Woman] Who paid for the trips?
- Paid for out of the $1,000 account
that I set up a few months earlier.
- At this point, your $1,000 was the only money
that had been put into the company?
- Yes.
- How did you feel the meetings went?
- They went terribly.
- Again, this doesn't make a lot of sense
because Eduardo Saverin's lawyer is the one
that's questioning Eduardo Saverin.
Usually that doesn't happen.
There's not much to be gained for creating testimony
from your own client.
The point of a deposition is to get adverse testimony
from your opponent.
So the plaintiff's lawyer is going
to question Mark Zuckerberg
and Mark Zuckerberg's attorney is going
to question Eduardo Saverin.
It's very rare to get deposition testimony
out of your own client
because you never know what kind of stupid things
your client is going to say
when you're not the one controlling that testimony.
Instead what you would want to do
if you want to get testimony out to support a motion
like a summary judgment motion is
to file what's called an affidavit
which is a written declaration
of what your client swears to.
You can attach exhibits to it,
you can say whatever you want as long as it's truthful
and then the client has to sign off on it.
So there's really no reason why you want
to get verbal testimony from your own client
when you can always get written testimony later on.
- Going to enter this into the record,
incorporation papers for Facebook,
an LLC registered in Florida.
Why Florida?
- It's where my family lives.
- And ask the respondent to stipulate
that the Articles of Incorporation
state the ownership as follows.
65% for Mark Zuckerberg, 30% for Eduardo Saverin,
and 5% for Dustin Moskovitz.
- [Man] Yeah, we stipulate.
- [Woman] And that was April 13th, 2004.
- You can mark it.
- So this is really, really accurate.
When you're doing a deposition,
you often deal with physical exhibits all the time.
Emails, articles of incorporation like this,
any physical paperwork that needs to be talked about.
First you have to mark it as an exhibit to the deposition.
You of course need to describe what you're going
to be talking about and then put a number on it
so that you can always refer back
to, say, exhibit 35 is the Articles of Incorporation.
So the dialogue is going on right here is a 100% accurate.
Anytime you deal with a physical exhibit
in a deposition you've gotta mark it,
you got to add it to the record,
and then it's not entered into evidence per se,
it's just an exhibit to that deposition
and often you'll refer back to that in other depositions
or throughout that particular deposition.
- [Woman] Eduardo.
- [Eduardo] Can you please repeat the question?
- No, it was an outrageously leading question
the first time around
and now you want us to hear it twice?
- Yes, would you read it back please?
- Go ahead.
- Counsel, and when you signed these documents,
were you aware
that you were signing your own death certificate?
- No.
- That's a great tactic.
So the stenographer, as I already talked about,
is constantly taking down everything
and often the opposing attorney won't like the questions
that you are asking.
And one way to get around that just as a rhetorical device
is to ask the stenographer to read back the question
that you asked.
And often as what happens here,
the witness actually just answers the question
without you having to re-answer it
and without the other attorney objecting to it.
Here you could kind of hear
that the opposing attorney was objecting
to the question as misleading.
It's not usually a proper objection.
The rules of evidence don't really apply in the deposition,
you're allowed to ask whatever questions you want.
And often when I'm dealing
with obstreperous opposing counsel,
I'll do the exact same thing.
I'll ignore the opposing counsel
and just simply ask the court reporter
to read back the question that I originally asked
and I will often get an answer to my question.
- I'm not a bad guy.
- I know that.
And there's emotional testimony,
I assume 85% of it is exaggeration.
- And the other 15?
- Perjury.
- Accurate.
- What happens now?
- Sy and the others are having a steak
on University Avenue and they'll come back up to the office
and start working on a settlement agreement
to present to you.
- We're gonna settle?
- Oh yeah.
And you're gonna have to pay a little extra.
- Why?
- So that these guys sign a nondisclosure agreement.
They say one unflattering word about you in public,
you own their wife and kids.
- I invented Facebook.
- Yeah, so there's some truth to that.
I think that generally what happens after a deposition
is not going straight to settlement.
Really what's gonna happen is a motion
for summary judgment,
which is basically like a trial but on paper.
You take all of the depositions,
you take all of the exhibits,
you put them down on paper,
you make your most convincing argument,
and you say that even taking the evidence
in the light most favorable to the other party
that you're against, it still supports your side
as a matter of law.
In the grand scheme of things,
the $500,000 that it takes
to put together a summary judgment motion is nothing
compared to the billions of dollars
that are at stake and potentially at stake
in this settlement agreement or the lawsuit in general.
So most likely the next step would be summary judgment
and only then would you go after settlement.
And if settlement failed,
then you would go after trial.
That's why 98% of cases settle first before going to trial
because the stakes are too high
and you never know which way a jury is going to go.
- I have been licensed to practice law
for all of 20 months and I could get a jury to believe
that you planted the story about Eduardo and the chicken.
Watch what else.
Why weren't you at Shawn's sorority party that night?
- You think I'm the one that called the police.
- Doesn't matter.
I asked a question, now everybody's thinking about it.
You've lost your jury in the first 10 minutes.
- Some truth to that.
- I was drunk and angry and stupid.
- And blogging.
- Pay them.
In the scheme of things, it's a speeding ticket.
- Yeah, for better or worse, that's often true.
For a huge corporation,
making these kind of settlements is an easier thing to do
than to roll the dice and go to trial
where you might lose hundreds of millions
or billions of dollars.
(upbeat music)
Alright, that was The Social Network.
Now let's give it a grade for legal realism.
(gavel banging)
So much of this movie is told through depositions
and it appears that a lot of the dialogue
was taken directly out of the deposition testimony.
You can tell when there's back and forth
between these lawyers or they're asking for a lunch break
or they've been going for too long.
That's exactly what a lawyer would say
and the dialogue is spot-on,
right down to marking an exhibit to go into the record.
I don't know that I've ever seen a depiction
of a deposition more accurate than what we saw here.
On the other hand,
I think that there is some cinematic license taken
where they are conflating different depositions together,
they're having the wrong attorney ask the questions here.
The witness at one point was turned completely around
and wasn't even looking at the camera.
That would never be allowed.
It's all for dramatic effect.
But notwithstanding,
this was one of if not the most accurate legal drama
I have ever seen in my entire life.
I think largely because they used the deposition testimony
as the reference material for the movie itself.
So with all of that under consideration,
I'm giving The Social Network an A-minus.
It's clear you did well at Harvard.
It's a little-known fact
but the character in the movie Mark Zuckerberg
is actually based on a real person
who went on to create one of the biggest websites
in the world.
You might've even heard of it, Thefacebook.com.
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