Rakofsky Totally Has The Internet Just Where He Wants It Now

Effluvia

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

22 Comments

20 Comments

  1. Grandy  •  Jun 21, 2011 @11:05 am

    I've long thought that tech support type people HATE having to provide support for other IT personnel, so I can totally believe the "lawyers as clients" thing. Nobody actually likes Doctors in any setting, so it's no surprise they're trouble too.

  2. marco73  •  Jun 21, 2011 @11:23 am

    The intertubes will be calling career self destruction by an attorney the Rakosky Effect.

  3. Valaru  •  Jun 21, 2011 @12:16 pm

    …a cheerfully demented message board that communicates chiefly through rude photoshops…that is spelled bannination.com

  4. Ken  •  Jun 21, 2011 @12:54 pm

    Thank you, Valaru.

    I've been watching the bannination hits roll in on Woopra. Is there any special etiquette I should be aware of, like not trying to run away from bears or not showing fear to dogs or not looking Canadians in the eye when you talk to them, or anything? Boobies should I start every sentence with boobies? The traffic logs have me bemused, frankly. I was not previously aware that Larry Flynt had authored a web browser. Also, how do all these secure facilities have internet access? Anyway, I'm even more impressed than before with the photoshop skillz.

  5. Valaru  •  Jun 21, 2011 @1:10 pm

    just come in and be yourself, and don't run.

    never run.

  6. injuryproneerik  •  Jun 21, 2011 @1:46 pm

    Well Ken, we pride ourselves on having users that are smart enough to bypass an industrial-strength firewall, and just employable enough to still get caught, but somehow keep their jobs. Boy, does HR laugh at those pics when no one's looking.

    I am serious about the fruit basket I mentioned on our site, though – if you drop me an email at my address (hopefully hidden, and in no way at risk of being hacked by a group with "Lulz" anywhere in the name) we will send you a lovely gift. Hell, it seems you're just over the continental divide based on your pony post. Who knew the Mr. Flynts of the internet loved the quality of life in the foothills?

    Oh, and if you've never seen our statement, it's here. The thread that follows descends into far more chaos than normal (subjectively speaking), but is good for a chuckle or two along the way. Allegedly.

  7. Miskellaneous  •  Jun 21, 2011 @2:14 pm

    Re: paragraph 4 – Motion to Dismiss and New York Procedure -

    Blah, blah, blah – Civil Procedure Law and Rules section 3211 (a)(7), a motion, usually in lieu of an Answer and before discovery, in which it is alleged that the Pleadings do not, on their face, state a prima facie case. Blah, blah, blah

    Sorry, I New York lawyer puked all over your blog.

  8. Ken  •  Jun 21, 2011 @2:15 pm

    Yeah, yeah. It's just not clear to me, the way it's written, whether New York procedure allows reference to items outside the four corners of the complaint at that stage, or not.

  9. Miskellaneous  •  Jun 21, 2011 @2:25 pm

    A 3211(a)(7) motion does permit affidavits and the introduction of evidence outside the pleadings, in which case, the court can treat the motion as one for summary judgment. However, to consider outside evidence, it had better be a bombshell, or the movant will lose the motion as long as the Plaintiff has simply alleged all of the elements of a cause of action in the Complaint (whether based on "true" underlying facts or not).

    In other words, it is a judgment call by the Court.

    Sorry, lawyer barfed on your blog again. I can't help it, I give free consultations.

  10. Ken  •  Jun 21, 2011 @2:28 pm

    No, I appreciate it. I knew enough to know I didn't know NY law. The Motions to Dismiss appeared to me to rely on at least some stuff outside the complaint — in California I'd be able to use our exceptional anti-SLAPP statute for that purpose, but I wasn't sure how it would play there.

  11. Miskellaneous  •  Jun 21, 2011 @2:39 pm

    My recollection is that NY's Anti SLAPP is limited to matters involving "public participation". In effect having someone sue you because you are active in a public forum, like a zoning board meeting or some other forum involving government intervention in the lives of real people. I do not know of any cases where it is used in the context of private disputes, even where Constitutional rights are being debated.

    In place of your Anti SLAPP we would probably substitute some sort of frivolous action sanction, which is rarely granted, but on the books (just for Mr. R, perhaps)

    Glad to be of help.

  12. Bannination  •  Jun 21, 2011 @2:48 pm

    We are Bannination. We are about three people with 10,000 alts. We do not forgive… each other for the smallest slight. We do not… ummm…. ooh look! Shiny ponies!

    Expect us…

    ….to pull the plug by Thanksgiving.

  13. Amiable Dorsai  •  Jun 21, 2011 @6:19 pm

    It's pretty clear that lawyering is not Rakofsky's strong suit, However, as I understand it, the "Jackass" series of movies requires a new host…

  14. Scott Jacobs  •  Jun 22, 2011 @12:45 am

    and a bar proceeding.

    Man… Wouldn't that be about the shortest flame-out of a career ever…

    However, as I understand it, the “Jackass” series of movies requires a new host…

    Cast-member. DUnn was just cast. Knoxville is the "host" (as much as they have one).

  15. Amiable Dorsai  •  Jun 22, 2011 @6:48 am

    Cast-member. DUnn was just cast. Knoxville is the “host” (as much as they have one)."

    Ah, perfect, I was concerned that he might not be smart enough to be a host.

  16. SPQR  •  Jun 22, 2011 @10:25 am

    Its more than a little hilarious that in an opposition to a pro hac vice admission motion, Rakofsky reveals in such excruciating detail just how incompetent he is.

  17. Mike  •  Jun 22, 2011 @1:22 pm

    “mentally unbalanced and currently unmedicated.”

    I've just finished updating our office copies of Black's.

  18. mojo  •  Jun 22, 2011 @2:59 pm

    Excuse me, he sued the internet?

    WTF, over?

  19. Scott Jacobs  •  Jun 22, 2011 @3:04 pm

    Well, not the ENTIRE internet…

    Just those portions of the internet that are a) most qualified to judge his ability and competency as a lawyer and b) most able to defend themselves from a lawsuit.

  20. LegalEagleBeagle  •  Jul 9, 2011 @2:53 pm

    There are three types of lawsuits: 1) Those that you can't lose, 2) Those that you can't win, and 3) Those that require advocacy. Yours falls into the first category.

    Rakofsky and his attorney and cohort Bourzaye are trapped at the bottom of a legal sand pit, and cannot shovel themselves out. Their case falls into the second category above. Now you guys have Turkewitz, a seasoned litigator who knows New York Practice, and Randazza, an expert on First Amendment issues representing you. Do you really need this overkill? It's the equivalent of having two Iowa Class battleships, each using all 9 of its 16-inch guns broadside, to shell the collapsing sandpit.

    I guess it's more exciting watching 2000 lb. shells explode than watching sand cave in by itself; but to each his own.

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