the Zealous

As deal lawyers, it’s our job to anticipate disputes. If a dispute does arise, the competence of both sides’ lawyers is immediately put to the test, in the form of a glaring spotlight on the choice of law and forum clause. Is the dispute captured cleanly, or ambiguously? Being forced to spend legal fees on the peripheral question of applicable law and forum is a recipe for massive client frustration.

At this time 27 years ago, OJ Simpson was acquitted in Los Angeles Superior Court of the murders of Nicole Brown Simpson and Ron Goldman. The jury deliberated for less than four hours. The government's case was doomed primarily by a single government witness, Mark Furhman.

Simpson’s group of defense lawyers, which would come to be known as the “dream team,” included F. Lee Bailey (shown in photo). Bailey conducted the cross-examination of Furhman, a detective with the LAPD. It was Furhman who discovered a right-handed blood-covered glove at Simpson’s residence that matched a bloody glove found at the scene of the double-homicide. The blood from both gloves was identical, and DNA evidence from the left glove revealed a mix of Simpson’s blood and that of the two victims.

The theory of the defense was that Mark Fuhrman was a racist and had planted the glove at Simpson's residence in order to frame Simpson, or at least, to pump up the case against him. The actions and testimony of Furhman were more than enough to implant reasonable doubt in the minds of the jury members.

Consider the following all-too-common scenario: employee leaks valuable company information to a competitor and is fired. Company then sues the employee for breach of an employment NDA, which applies to “all proprietary information” that the employee received. The confidentiality obligation is evergreen--an all-too common feature of employee NDAs.

Outcome? In a state where employer-mandated non-compete covenants are enforceable if reasonable, a US court has struck down this exact NDA as an unreasonable restraint of trade.