Prenda Law: A Brief Interlude About Being A Judge

Print This Post

You may also like...

40 Responses

  1. mojo says:

    And that couldn't be classed as "extortionate"?

  2. Zack says:

    XD, your name for that smackdown is awesome.

  3. Lizard says:

    Y'know, it seems to me (and I'm probably wrong, as IANAL)that a lot of baseless civil lawsuits could be avoided by the simple expedient of:
    a)Make sending a letter threatening a lawsuit, without first filing such a suit with the court, considered blackmail and dealt with accordingly.
    b)Any amount of money or other compensation requested to settle out of court (by agreeing to drop the suit) must be equal to the amount originally sued for in "a". After all, if someone harmed you to the tune of 1 million billion gazillion dollars, because that's what you said you were suing for, how can 10,000.00 possibly assuage your wounds? You wouldn't have been *exaggerating* the harm you suffered, now, would you?

    This will still allow those who know they are, indeed, likely to be found guilty to settle without the additional expense of a trial, and will pretty much eliminate "We know we'll lose this suit, but we'll ask the defendant for less than it will cost him to defend it, so he'll pay us any way." as a business model. If they file a suit for more than it will cost the defendant, they can't ask him for less. If they file for less than it will cost the defendant, the defendant will go to court. Only those suits where the plaintiff believes they'd succeed on the merits would ever end up going to court. (Thinking specifically of patent trolls here… "It will cost you 1 million dollars to defend yourself against this lawsuit we filed for 10 million dollars, so we'll settle for 900,000.00, and the beancounters in your corporation will tell you to take it. Please, whatever you do, don't read 'Dane Geld' by Rudyard Kipling; it kind of gives away our whole plan.") Under my model, they can't settle for less than 10 million, so the beancounters will say "Take 'em to court!". Or, they file for 900,000, and offer to settle for the same, and the beancounters still say "Take 'em to court!".

    I know I'm wrong, so, tell me how I'm wrong. (Other than the fact laws are made by lawyers, and lawyers rarely betray their own.)

  4. Merissa says:

    I daresay you're doing more good here than you could as a judge, sir.

  5. Tarrou says:

    Lizard, my only problem with that plan is that I don't think most normal types of blackmail should be illegal. Using the force of law to extract money from people under false pretenses should be punished. Telling the truth in public shouldn't.

  6. Lizard says:

    @Tarrou: I can see your point, provided it was governed under the same laws as any other contract, that is, both parties must be held accountable to the terms of the agreement. This may require filing the information under some kind of encryption or seal deemed secure by both parties. (Larry Niven's Known Space novels featured such a contract, so I am not claiming originality, here.)

  7. Adam says:

    Posner, Easterbrook and especially Kozinski seem to have fun with it. So I guess the key is to be one of the preeminent legal minds of your generation and then get appointed to an appellate court. That way you can write entertainingly and people will still take you seriously.

  8. Brad Catlin says:

    Lizard,

    The big problem I see with your proposal is that it ignores the value of pre-suit negotiations to both the plaintiff and the defendant. Many times, there may be little question about liability and a manageable dispute about damages. The costs, risks, and time involved may not justify lengthy litigation. Moreover, the exact extent of somone's damages may not be clear before suit is filed. For example, if the plaitiff has been injured, they may continue treatment, which will increase damages, throughout the suit. Likewise, the extent of someone's damages may be an issue that is hotly disputed, which could create a large amount of risk pre-suit, but very little risk if the court decides in the plaintiff's favor during the suit.

    Keeping this in mind, there have been many occasions on which I've sent a demand letter before suit is filed that lays out the basic claims, describes the total damages (and exposure) generally, and makes a demand for something less than that, because of the decreased costs, risks, etc.

    The kind of extortionate conduct that Prenda or patent trolls engage in is not typical and we shouldn't make rules based on the conduct of outliers. Instead of enacting rules that are overbroad, the type of extortion you identify can be dealt with separately (through Rule 11, attorney discipline, Internet infamy).

  9. Lizard says:

    @Brad: Well, you're at least helping me confirm one of my general rules for life:"If you think you've found a simple solution to a complex problem, think again. Someone else has almost certainly thought of it, found it wouldn't work, and dismissed it. If a simple solution exists to any problem, it likely would have been found long ago."

  10. Ken says:

    For those interested, in California the Lord of the Dance helped us explore the line between extortion and negotiation.

  11. Dan Weber says:

    Also from the Judge, about Hensmeier's claim of "class counsel is being a jerk, so make me class counsel instead, mommy!":

    Further still, even if such a need [to replace class counsel] existed, the Court certainly would not appoint Objector’s counsel as co-lead class counsel based on the sort of behavior the letters exhibit."

    That still gives me a fuzzy feeling to read.

    On settling, if I have suffered $500,000 of damages, but I think that the most I can get from you (due to your financial situation) is $300,000 and it will cost me $100,000 to get that, it certainly seems reasonable to me to offer to settle for $200,000. If I think I only have an 80% chance of winning, despite my case being true and sincere, then $150,000 seems a very rational thing to settle for.

  12. mcinsand says:

    >>Well, in a recent interview with a hometown paper, he expressed
    >>hope that representing family members in class action matters
    >>would eventually lead to a broader client base:

    I don't see how Hansmeier can hope for any kind of a client base if he is disbarred, and, looking at the attention he's getting from judges now, I think it's safe to say that he will be kissing the attorney profession goodbye in fairly short order.

  13. ShelbyC says:

    I'd be happier about this if the beneficiaries weren't a bunch of class action lawyers.

  14. xbradtc says:

    IANAL, but from what I've seen, real lawyers sending demand letters when clients have a genuine issue or claim are at least smart enough to write a letter seeking an actual resolution to an issue, not an attempt to force someone to pony up money to avoid the expense of court.

    Question for lawyerly types here. Should a case go to trial, can the demand letter be admitted to show a discrepancy between the damages sought, and what the plaintiff originally thought was worth settling for?

  15. Owen says:

    xbr:

    I'll use the Federal Rules of Evidence as an example, which may vary by state (but not by very much, I imagine). FRE Rule 408 deals with the admission of evidence related to Compromise Offers and negotiations. The Federal Court strongly supports settlement negotiations, and to make this a safer thing for attorneys and parties to conduct, they have make evidence of settlement or compromise negotiations inadmissible in all but a few select circumstances.

    So, as the rule fairly plainly puts forward, you would only theoretically be able to introduce such evidence to prove bias, to disprove an allegation of undue delay (by showing that there were ongoing settlement negotiations), or to show obstruction. Note that these exceptions are outside what the court would consider 'proper settlement negotiations.'

    It's not difficult, in my opinion, to see why they would be so restrictive of using these communications – if they could be used against you, you now have a huge disincentive to negotiate in good faith, or to negotiate at all.

  16. Owen says:

    Obviously I screwed up the entire block quote… Let's see if I can do it right.

    (a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

    (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

    (2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

    (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

  17. Josh M. says:

    @Ken: That was a very interesting read. Good to know that, at least in California, you actually have to make a good-faith effort to negotiate a settlement and not just make demands, else you may be convicted of extortion. Does this have any bearing on the Prenda case? I mean, I realize that's a hard determination to make, but based on their standard demand letters, what's your (totally non-binding) opinion?

  18. xbradtc says:

    Owen, thanks. Makes sense, and seems to further reinforce Lizard's point about simple solutions.

  19. MattS says:

    Tarrou,

    The laws against extortion do not punish or other wise make telling the truth in public illegal. What is prohibited is demanding that someone give you money or other consideration in exchange for NOT telling the truth publicly. I don't have an issue with that.

  20. Dr.Tom says:

    You have to wonder what kind of clients these guys would ever attract after this is all done. Or who would hire them. Are there that many clients looking for (what appear to be) both unethical AND incompetent lawyers to represent them? While there may be people looking for unethical lawyers (avoiding urge to mention that the adjective may be superfluous) to do certain tasks, but would you trust someone to do it effectively when the nature of their work has been so widely exposed?

    And clearly any future employer with a HR department worth the red stapler on their desk would find this information from even a cursory search online.

    Unfortunately, it would seem they would be forced to continue this kind of behavior (if they are not disbarred) because there would be little else they would be qualified to do.

    I suspect that Hansmeier's wife (and her employers) is thanking her lucky stars that she kept her maiden name. This kind of shit tends to splatter…

  21. Speed says:

    On being a judge …

    I was on a jury once. The judge fell asleep during testimony. There wasn't much going on anyway.

    I was killing time in the courthouse once — waiting to meet an attorney — so I sat down in a courtroom (someone beat another someone up outside a bar) for a few minutes. Time passed everywhere but inside that courtroom. Dull. Boring. Monotone. Almost inaudible questions. Whispered answers. Confused witnesses. Confusing lawyers. It was painful to watch. The benefits must be great because being a judge (as I've seen it) sucks.

  22. Anonymous says:

    It is quite remarkable that these guys try the same transparent bullshit on other attorneys and with judges watching.

    It looks like they got too lazy and complacent by starting their careers off with bullying laypeople, then failed to seriously considered how to respond when an actual attorney refused to roll over.

    It has taken far too long for Prenda to come apart but it began the moment the first John Doe filed a pro se motion to quash and was all downhill from there. Once a couple John Does had lawyered up things started to get hilarious; Prenda were just never prepared to seriously litigate a case beyond sending their threatening letters.

    In a way I'm almost disappointed that Paul Hansmeier's career is likely to end in Judge Wright's courtroom before he could crash and burn in this professional objector scheme. Given how ham-handed and transparent his first few shakedown attempts were, I can only guess this would have also had an embarrassingly spectacular finale.

    Amazing that they have managed to assemble such a rabble of "young attorneys" that are equally clueless, but then I guess that's why those guys don't have other, real jobs.

  23. nlp says:

    Speed; about the judge falling asleep during the trial. Did that take place in Suffolk County New York around 1983? Because that's when the judge started dozing off, only to wake up to find everyone staring at him. There had been an objection, and we were waiting for his response.

  24. Nicholas Weaver says:

    It also makes me wonder how much of Brett Gibb's Sgt Schultz defense will work going forward, given his close working relationship with the rest of the Prenda crew as witnessed in the lovely attempt at turning from Copyright Troll to Class Action Shakedown Artist.

  25. Lucy says:

    Welcome to the big leagues Paulie.

  26. AlphaCentauri says:

    I just got the sinking feeling that after these guys can't be lawyers anymore, they'll get reality TV series, then start becoming professional primary election candidates a la Donald Trump. They have no shame, and there are people who are happy to sit in front of the TV every night of the week watching people who are even more pathetic than themselves.

  27. Lizard says:

    @Alpha — oddly, all the reality shows I watch feature people much more talented than myself — Top Chef, Face Off, that sort of thing. I'm weird, I guess.But, combining this blog and reality TV, my wife and MIL are both hooked on Judge Judy, which definitely is a steady stream of the most pathetic losers in America, willingly humiliating themselves in front of an audience of millions.

  28. That Anonymous Coward says:

    *sits next to his handy little plaque reading If their reputation could not be any worse…*

  29. Speed says:

    nlp; Cuyahoga County, Ohio. He was a retired judge hearing cases to help shrink the backlog.

    It was after lunch.

  30. VPJ says:

    There was a time when I thought that someday I might like to be a judge

    You and Peter Cook both. Shame your Latin wasn't…

    Sorry, couldn't resist.

  31. Jabberwocky says:

    http://canlii.ca/en/on/onsc/doc/2010/2010onsc6568/2010onsc6568.html

    Being a family lawyer, this is hands-down my favourite recent ruling here in Canada.

  32. Chris R. says:

    I am going to use "govern yourself accordingly" at the end of my holiday cards from now on.

  33. Docrailgun says:

    "Govern yourself accordingly" is the sort of phrase that 419 scammers have used for years. Perhaps that is where our friends got their litigation strategy from?

  34. StripeyMiata says:

    I think so or else this chap would be out of business – http://www.bettercallsaul.com

    Then again he seems to be quite competent.

  35. Alan says:

    Well, I went over to FCT, and I found this potentially even more disturbing item…

    http://fightcopyrighttrolls.com/2013/03/23/copyright-troll-linda-ellis-succeeds-in-censoring-her-outspoken-critic-the-founder-of-extortionletterinfo-com/

    Popehat signal, if not already done?

  36. StripeyMiata says:

    My post was directed at Dr.Tom, I just totally screwed up the tags.

  37. Dr.Tom says:

    @StripeyMiata Thanks for the suggestion. Saul says 'hi' and that your little 'incident' is almost taken care of.

  38. Sharon says:

    @Jabberwocky – Thank you many times over for the link to that ruling.

    The footnotes are even more delicious than the body:
    "I am prepared to certify a class action for the return of all wedding gifts."

  1. March 26, 2013

    […] @Popehat: #Prenda Law: A Brief Interlude About Being A Judge popehat.com/2013/03/26/pre… […]