North Face and South Butt Take the Gloves Off at Deposition

Posted on March 26, 2010 by Pete Salsich

Litigators know that from time to time, tempers will flare at a deposition. In the normal case, it's just part of the overall process and the rest of the world never learns about it.

It's becoming increasingly clear, however, that North Face v. South Butt is NOT a normal case. Yesterday's American Lawyer ran a story first reported in St. Louis's Riverfront Times about some craziness at the deposition of Defendant Jimmy Winkleman's father just last Friday. Seems the senior Winkleman alleged that one of North Face's lawfirms, Bryan Cave, had a conflict of interest because it had represented him numerous times in the past. Bryan Cave denies any conflict, claiming it went through its normal conflicts clearance process.

I don't know if there is a conflict or not, but there is no doubt that this case seems to be getting tried on every issue but the one that actually matters -- whether there is likelihood of confusion between the two marks. That will be determined by admissible survey evidence -- not the informal "butt versus face" type of analysis that South Butt's website and attorney are driving in the press.  

The preliminary injunction hearing is scheduled for April 12, so we'll know soon enough. Until then, we'll keep watching this case, which South Butt's attorney Albert Watkins recently described in particularly graphic language.  One thing's for certain -- lots of attorney's fees are being generated. In some circles, that alone would justify Watkins' description!

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Billable Hour Surprises: How Lawyers are like Auto Mechanics

Posted on March 1, 2010 by Pete Salsich

Why should any lawyer be surprised that clients don't like the uncertainty of hourly billing? Have you ever taken a car into the shop and been surprised by how much a repair cost?

Let me start by making it clear that I like my auto mechanic. I've taken my cars to the same neighborhood shop for a number of years and have always been pleased and satisfied with the quality of the work and the level of customer service. And even though my car has been in the shop for more than a week now, I'm still satisfied that I've taken it to the right place.

Until this past week, however, I never realized how much auto mechanics are like billable hour lawyers. My ordeal started with steam billowing out from under my hood as I pulled up in front of my house. Like many legal clients, I didn't know exactly what was wrong, but I knew I had a problem. 

With a few prayers (and some less than complete stops at stop signs), I made it to the auto repair shop. Here's a synopsis of my subsequent conversation with the mechanic:

Mechanic: "Well, Pete, you've got a broken thingamawhatsit hose, but we have to take the engine block apart to get to it."

Me: "Can you fix it? 

Mechanic: "Sure, but we won't know if we need to fix anything else until we get the engine block apart and order the part. Call back on Thursday."

Me: "Thursday? Wow, that seems like a long time--about how much will this cost?"

Mechanic: "Well, that depends. This is a labor-intensive job--probably about 5 hours of labor, plus parts, but there's a lot we don't know yet." 

Starting to sound familiar? It's now been 8 days since I took the car in, and the "investigation" alone has taken more than 5 hours, not to mention the total amount of time it will eventually take to fix the problem. And there's not a thing I can do about it because they have my car in the shop, with it's hood open and engine parts disassembled. I just have to see it through to the end and hope the bill isn't too large.

That's the experience most legal clients have when they pay by the hour. Like I said, I like my mechanic, but I'm becoming more and more convinced that there is a better way to bill my clients.

UPDATE (3/2/10): I Picked up my car last night. It runs great, but the $1500 bill was about twice what I expected from my initial conversation with the mechanic.  To be fair, he kept me apprised of everything they had to do, so I knew the bill was creeping up, but it was still a shock. The lesson: even the best customer service in a pure billable hour situation can be very frustrating.

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