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Jun 21, 2011 
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I previously wrote about Joseph Rakofsky, the newbie lawyer who sagely decided that his first trial should be the defense of a guy charged with murder. The court declared a mistrial, which he celebrated, until the Washington Post and dozens of bloggers began to criticize his client-risking hubris. Then, showing the same spectacular judgment, he sued the Post, the American Bar Association, a cheerfully demented message board that communicates chiefly through rude photoshops, and a whole bunch of lawbloggers.
Last I mentioned him, Marc Randazza — possibly bored of kicking the shit out of sleazy copyright-troll enterprise Righthaven — was coming in to represent a posse of the bloggers.
New developments continue to illustrate that (1) Rakofsky really was that bad of a trial lawyer, (2) Rakofsky really doesn't understand the Streisand Effect, and (3) Rakofsky really doesn't know what he's getting into:
1. The Transcript: The heart of Rakofsky's bizarre SLAPP suit is the claim that the trial judge didn't declare a mistrial because he was incompetent — the trial judge only declared a mistrial because Rakofsky's client wanted a new lawyer, possibly because he felt he didn't deserve an advocate who was just this awesome. I argued before that this claim sounded fishy — trial judges don't let you change lawyers mid-trial, requiring mistrials, except in the most extreme circumstances. Sure enough, when the transcript of the judge's comments came to light, it showed that the judge's mistrial ruling was made in the alternative — that it was based both on the breakdown of the attorney-client relationship and on the fact that Rakofsky's inept performance created a "manifest necessity" for a mistrial. That eviscerates Rakofsky's defamation claim — and, in fact, shows that he ought to be subject to sanctions and a bar proceeding.
2. The Borzouye Retreat: Richard Borzouye, the Rakofsky-crony attorney who thought it prudent to file a freakishly frivolous SLAPP suit against a sizable chunk of the legal blogosphere, has asked (with Rakofsky's apparent consent) to withdraw from the case. Better late than never, I suppose, though no competent or ethical attorney should have signed either the original complaint or the amended one to begin with. Will Randazza and his clients let Borzouye go without later pursuing him in some forum or other? Time will tell — but the die was cast, the Rubicon crossed, the ram has touched the wall. Meanwhile Rakofsky claims to be seeking a new lawyer. I suppose it's possible he'll find one with judgment even worse than Borzouye to continue the case. If not, his law firm will be dismissed as a plaintiff, and Rakofsky will be forced to continue pro se, a Latin term meaning, roughly, "mentally unbalanced and currently unmedicated."
3. Rakofsky's First Salvo: Now that the war has started, will Rakofsky show more prudence in picking his battles? Reader, you ignorant slut, how can you even ask that? Rakofsky has picked his first battlefield: squabbling over whether Randazza will be admitted pro hac vice in New York. For you lawyers out there, pro hac vice motion is a routine motion in which a local lawyer supports a request by a lawyer from another state to appear for purposes of a single case. Such requests are granted as a matter of course. Opposing one is the rough equivalent of jumping up and shrieking I OBJECT as soon as the other side says "Good morning, Your Honor." Moreover, Rakofsky's opposing pro se brief is rambling, whiny, and poorly drafted. In it, Rakofsky complains that bloggers continue to make fun of him, effectively admits to eavesdropping on a phone call in arguable violation of law, and gets his briefs in a bunch because Randazza told him to shut the fuck up, which is perhaps the best advice Rakofsky has ever gotten. (Randazza is an unmatched First Amendment pit-fighter, but he's unlikely to be called in to host a ladies' tea party; if Rakofsky doesn't like being told to shut the fuck up, and doesn't like being ridiculed by bloggers, he's in for a bumpy flight.) Nowhere in Rakofsky's mewling rant does he demonstrate any grasp whatsoever of the First Amendment and proof problems facing him. Nor does he demonstrate that he understands that it's foolish to make misleading claims that may quickly be refuted.
4. The First Motions to Dismiss: An attorney representing other bloggers has submitted the first motions to dismiss based on substantive First Amendment arguments. I'm not going to comment on them much because I find New York civil procedure to be an odd duck. Suffice it to say they are but a hint of the type of legal ass-kicking Rakofsky is going to experience.
5. Lawyers Being Lawyers: Meanwhile, lawyers continue to be lawyers. A number of law bloggers, despite being represented by counsel in the case, have continued to blog not only about Rakofsky's conduct (which I might begrudgingly tolerate, were I their attorney) but about the process of being represented in and refuting Rakofsky's lawsuit. That gives you a hint of what it's like to represent lawyers, who are bowel-churningly awful to represent in ways similar to, but distinct from, doctors (with the exception of any doctor or lawyer clients reading this, who are awesomesauce, of course). The phrase that best depicts what it's like to have a lawyer as a client is "Hey, guys, watch THIS!"
Edited to add: I forgot to mention that I introduced Rakofsky to Fark. You kids have fun now!
Edited again: Hello, Bannination folks. That really was intended more as a backhanded compliment than a slight. Please don't hurt me. I am afraid of ponies, for reasons I expressed yesterday.
Last 5 posts by Ken White
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22 Comments 
asshats, Free Speech, Lawyers Behaving Badly, SLAPP
