– [Man] This video is
brought to you by Wix, 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. – 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
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