This article appeared on Law360 on June 17, 2016 and is reprinted with permission.
David Hosp is a principal and trial lawyer in the Boston and New York offices of Fish & Richardson PC, where he specializes in media, copyright and trademark litigation. In his 20-year legal career, he has represented clients including The New York Times, The Boston Globe, Samsung, Walmart, New Balance, Cablevision and Houghton Mifflin Harcourt in media and intellectual property matters of first impression. In 2013, The Hollywood Reporter included Hosp in its annual Power 100 edition and named his team’s defense of Aereo Inc. against copyright and unfair competition claims brought by the country’s major television broadcasters at the trial court and before the Second Circuit Court of Appeals as “Case of the Year.” He has been recognized in The American Lawyer, The World Trademark Review 1000 and The Legal 500, among other legal publications. He has lectured at Harvard Law School’s Berkman Center and Boston College Law School.
Q: What’s the most interesting trial you’ve worked on and why?
A: The Fox v. Aereo case was probably the most interesting case in the sense that we were representing the upstart defendant, dealing with novel copyright issues, fighting the major television networks and studios and challenging the status quo. There was so much attention paid to it that the two-day preliminary injunction hearing had to be simulcast to a second courtroom to handle the overflow of press and spectators. It made for great theater, and it was particularly enjoyable because we had success at the District Court and before the Second Circuit. In much of the press, the client was portrayed as the “black hat,” which also presented some interesting challenges. The matter ended at the U.S. Supreme Court with a decision that still has me scratching my head a bit. I think that Scalia’s dissent is analytically far sounder than the majority’s opinion, but I suppose that even though Fish was not lead counsel at the Supreme Court and I did not handle the oral argument, few would believe me if I claim to be entirely objective in the matter.
Q: What’s the most unexpected or amusing thing you’ve experienced while working on a trial?
A: I had a trial in a trademark case between two banks where the other side’s chief marketing officer was questioned on the stand about his company’s advertising practices. His bank had a mascot that appeared in much of the bank’s promotional material, and he was describing the mascot (which looked like a rolled-up dollar bill) and introducing mugs and t-shirts and flyers that had the mascot on them. Counsel for the other side asked whether the promotional items were the only form the mascot took, and the CMO said, “No, he also comes larger than life!” With that, he pointed to the back of the courtroom, where a guy leapt to his feet wearing a giant foam dollar bill costume, arms proudly outspread, waving to the gallery. It was a bit of a surreal quasi-“Perry Mason” moment, and the waving mascot brought a ripple of laughter throughout the courtroom.
Unfortunately, the guy in the suit had had some difficulty getting the costume on in the back of the courtroom, and he wasn’t able to line up his face with the eyeholes, so as he tried to come forward, he tripped over the seats in front of him and fell into the aisle. Ultimately he made it to his feet and had to be led by the hand up to the front of the courtroom. Counsel looked at the giant foam dollar bill and said, “Will you tell the court your name?” At that point, the judge finally stepped in with a wave of her hand and said, “Counsel, to be very clear, we’re not taking testimony from the mascot!”
Q: What does your trial prep routine consist of?
A: My trial prep routine the night before court consists of a lot of repetition. If the next day involves key examination, I’ll have someone on the team, who knows the facts of the case cold, act as the forthcoming witness and be as obstructionist and unpleasant as possible to try to avoid being nailed down. We’ll also drill for every unexpected answer they can give that we can come up with. For an opening or a closing, I’ll deliver it repeatedly until the full structure is in my head, and there are key phrases and points that feel natural and easy as I’m saying them. Then I go to bed and try to get a decent night’s sleep and not overthink things at that point. As long as I feel like I am prepared from the work that has lead up to that day, I can focus on staying relaxed, alert and reactive.
Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?
A: Be yourself. There are as many successful approaches to trial presentation as there are successful trial lawyers. Some great lawyers are loud and demonstrative, others are quiet and still. Some will hammer witnesses, and others will calmly ask their questions. But if they are successful, it means that they have found a style that is authentic to them. Judges and juries can sense when lawyers are being real, and when they are not. If they sense that the lawyer is not being real — that the lawyer is putting on an act — the lawyer loses credibility, and that can almost never be reclaimed.
I also go back to the tried and true advice given to me by one of my mentors when I was getting ready to give my first closing argument to a jury. He patted my shoulder, smiled reassuringly and said, “Don’t [screw] it up.”
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
A: Tony Feeherry, who was formerly the head of the trial department at Goodwin Procter LLP (where I practiced for 17 years before coming to Fish), has always been someone I looked up to, both as a trial attorney and as a person. He and I tried one of the first cases under the Computer Fraud and Abuse Act just after it was passed many years ago. He has a great grasp of the law and of the cases he works on, and a great presence in front of judges and juries. He does not overwhelm, he persuades. He comes across in court as humble and intelligent and honest — probably because that’s what he is — and that can be so powerful in a courtroom presentation.
He also brings great perspective to many other aspects of his life, the law and business. I remember sitting at a lunch with him and other lawyers back in 2008, when all the large firms had gone through a difficult time with the economic downturn, and the all-important profits-per-partner numbers for many firms had taken a tumble. One of the other lawyers at the table was lamenting in energetic terms what a terrible year we had had. Tony leaned back in his chair and took a deep breath and said, “We didn’t have a terrible year. Darfur had a terrible year. We just made a little less money than we thought we would.” I’ve tried to remember that line whenever it feels like things aren’t going my way.