A Fight-For-Free-Speech Story: What The Hell Is It With Dentists?

Law

This is a story about dentists, legal threats, and pro-bono badassery.

What the hell is the deal with censorious dentists?

There's this guy. Let's call him Bob. Bob's wife had a bad experience at a dentist. Bob set up a site complaining about the dentist. Bob learned, in this process, that the dentist had a history of threatening negative Yelp reviewers with bogus lawsuits.

There's a bad lawyer. Let's call her Bogus Betty. The dentist hired Bogus Betty, and Bogus Betty filed an application for a temporary restraining order and injunction under California's harassment law against Bob, under the theory that a gripe site about a dentist is dangerous harassment that requires a restraining order. This is the law that you use to keep your abusive ex from showing up at your door with a baseball bat, or your nutty former employee from crank-calling you 80 times a day.

Bob wasn't threatening or harassing the dentist. Bob made a web site critical of the dentist.

Bob needed help, very fast. I put out a request. The thoroughly awesome David Casey stepped up. Dave's in San Diego and Bogus Betty filed in LA County, but Dave stepped up anyway, because he believes in free speech.

Dave and Bob got the help of Adam Steinbaugh and Nicholas Weaver and put together a kick-ass brief. Dave wrote it, Adam assisted, and Nicholas acted as an expert demolishing Bogus Betty's technological arguments. Before the filing, Bogus Betty was threatening and refusing to negotiate. After receiving the filing, Bogus Betty was asking to negotiate. At the hearing, Bogus Betty asked for more time to cut a deal; the judge refused, required her to dismiss, told her there was nothing in her application warranting a restraining order, and told her not to come back with a case like that.

A beaten Bogus Betty cut a deal very satisfactory to Bob. Why am I not naming and shaming? Because Bob likes the deal and it's in his best interests and that's what I care most about. If I catch the dentist or Bogus Betty being censorious thugs again I'll drop the hammer on them in a heartbeat.

I say this over and over: the system is broken, because it allows people like this dentist and Bogus Betty to silence people like Bob by making low-risk threats and filing low-risk lawsuits. Most people can't afford to hire a lawyer to resist. The California anti-SLAPP statute is great, but it requires a capable lawyer up front.

There's only one way under the current system that people of modest means can be protected from thuggery. That way is the generosity and service of capable lawyers like David Casey and Adam Steinbaugh, as well as concerned non-lawyers like Nicholas Weaver. Thanks, gentlemen. You rock.

Will you answer the call?

Last 5 posts by Ken White

46 Comments

46 Comments

  1. Joe Pullen  •  Sep 12, 2013 @4:46 pm

    Yea!! I love to see my favorite people kicking ass. Great job guys.

  2. Pope Lizbet  •  Sep 12, 2013 @4:47 pm

    Nashville area lawyer who will. Know Memphis lawyers who will. Can be contacted via Twitter as popelizbet ; will provide my bar number privately.

  3. Wick Deer  •  Sep 12, 2013 @4:49 pm

    Well done, gentlemen.

  4. Nicholas Weaver  •  Sep 12, 2013 @4:50 pm

    Gratified to hear how much good I did.

  5. KC  •  Sep 12, 2013 @4:53 pm

    Wonderful job, all!

  6. J Dog  •  Sep 12, 2013 @5:01 pm

    One of my greatest sadnesses is that I live and practice law in Las Vegas, home to Marc Randazza, King of First Amendment Badasses. While I would love to help out in a case like this, I feel like I would be pretty much useless standing next to him. I should get licensed in another state just so I can respond to the signal. I wonder if my firm would be down with that?

  7. TM  •  Sep 12, 2013 @5:03 pm

    So from your perspective as a lawyers there a reason we shouldn't have a "loser pays" legal system? It seems like that would help solve a lot of this.

  8. Nicholas Weaver  •  Sep 12, 2013 @5:05 pm

    Oh, and something satisfying about responding to a declaration with no exhibits (for "investigation" by a PI that supposedly took enough time to rack up a $2K bill) with a declaration:

    a: with 14 exhibits. (OK, only 13 count. One was my CV)

    b: reproducing the bulk of the "investigation" in just 25 minutes of time,

    c: Including writing, only taking 3 hours

    d: And even if I billed at my (only mildly) obscene hourly rate, it would have cost less than half what the "investigation" cost

  9. L Nettles  •  Sep 12, 2013 @5:14 pm

    No naming and shaming, but you are on THE LIST

  10. Rhonda Lea Kirk Fries  •  Sep 12, 2013 @5:23 pm

    Where's the "like" button?

    Posts like this one are why I read Popehat. Well done. Spectacularly well done.

  11. Qitaana  •  Sep 12, 2013 @5:25 pm

    One day, you shall need a statistician (not unheard of in legal cases, actually), and I shall be happy to step to the plate. Until then, huzzah! for all involved.

  12. BCP  •  Sep 12, 2013 @5:25 pm

    TM, reasonable minds can disagree on loser pays, but in my experience, making that a bright line rule for all lawsuits swings too far in the other direction. There are a lot of cases that are really, really close. There are a lot of cases with merit that get poured out due to counsel errors (or simply a judgement call on strategy that, while well thought out, just goes sideways on you). Plaintiffs with moderate to good cases lose all the time.

    Assume you are a potential plaintiff and your lawyer's analysis is that you have a 75% chance of victory is the case is tried to a jury (pretty darn good odds in this business). Assume further that it will cost you roughly 100K to get to verdict, and the defense costs will be similar. There remains a 25% chance you get hit for 200K in costs and fees. Would you file?

    I'm very much in favor of rules that punish the worst offenders, but also cognizant of the fact that reasonable people with good claims would rationally forgo seeking relief they should otherwise be entitled to. We seem to be moving slowly in the right direction. SLAPP suits, especially, are an area where plaintiffs abuse the system. The approach of identifying those areas that are abused and dealing with them, individually seems to me a better solution than a bright line rule.

  13. DaveCA  •  Sep 12, 2013 @5:40 pm

    This was truly a team effort, particularly because of the tight time frame, and the fact that I was trying to handle everything from over a hundred miles away. Dr. Weaver's stuff was unbelievably helpful to toss out any "evidence" they thought they had, and Adam Steinbaugh was beyond generous with his time, especially getting everything printed and served in time for the hearing.

  14. mythago  •  Sep 12, 2013 @5:46 pm

    What BCP said.

    Ken, you may be aware that there is a push by pro bono groups to offer tort defense to indigent persons. Of course it's suffering the usual fate of legal services in a down economy, but it certainly an area that offers some hope.

  15. En Passant  •  Sep 12, 2013 @5:48 pm

    Thanks, congratulations and huzzah! to Ken and all the practitioners of First Amendment Badassery for providing yet another strong defense of free speech. That and scam busting are the major attractions that make Popehat a rich and bountiful oasis in the half vast wasteland of teh intarwebz.

    And incidentally it's wonderful to know that CA's anti-SLAPP statute once again demonstrated its worth and power. It is truly a vorpal sword and shield.

    Will you answer the call?

    If ever I see a Popehat signal for which I think I can provide actual useful assistance and not just be in the way, I will not hesitate, and you will hear from me through another channel than here. Until then, I'm happy to provide cheering from the peanut gallery.

  16. jimmythefly  •  Sep 12, 2013 @6:00 pm

    Hi-5 to you all. I like knowing there are people out there doing good.

  17. Tarrou  •  Sep 12, 2013 @6:29 pm

    I will not answer the call, because I'm not a lawyer, nevertheless much respect for those who volunteer their time to fight these obscure yet important battles.

    If you ever need a psychology or light weapons expert, I'm your guy.

  18. TomB  •  Sep 12, 2013 @6:37 pm

    Will you answer the call?

    Well, seeing as how I'm a dentist (but not a censorious one), I don't think I have much to offer. But you are correct, there are many dentists walking around with massive inferiority complexes.

  19. Kevin  •  Sep 12, 2013 @6:41 pm

    @Ken

    I say this over and over: the system is broken, because it allows people like this dentist and Bogus Betty to silence people like Bob by making low-risk threats and filing low-risk lawsuits.

    I've only been a regular Popehat reader for a year or so, so it's possible you may have already answered this, but do you have any specific recommendations for legislative changes to un-break the system?

  20. Myk  •  Sep 12, 2013 @6:57 pm

    I'm with Tarrou on this; not a lawyer, nor a psychiatrist. In fact, I left school at 15. But if you ever need a martini or a kick-ass margarita, I'm your guy.

  21. AlphaCentauri  •  Sep 12, 2013 @7:56 pm

    One thing everyone can do is be willing to serve on juries. A lot of lawsuit-lottery abuse comes about because lame cases actually have a decent chance of succeeding if the jury members are uncritical and easily manipulated.

  22. jb  •  Sep 12, 2013 @9:00 pm

    TM,
    Because all too often the wrong side loses. Juries would know that finding in favor of one side would inflict the winner's legal fees on the loser, and they'd rule accordingly, benefiting the more sympathetic appearing party and making the civil legal system even more of a crapshoot.

    I'd rather get semi-bankrupted on the strength of my legal case, than risk getting actually bankrupted because the jury liked the other guy better.

  23. TerryTowels  •  Sep 12, 2013 @10:19 pm

    Since I'm a Luna Lovegood, (http://25.media.tumblr.com/765632a34986b518fb3f82e304cb351c/tumblr_mpwedjbUzm1sr500suo1_r1_1280.jpg)

    I can only cheer you on. So,

    Rah, rah, you're doin' good
    Rah, rah, I knew you would.

  24. Andrew F  •  Sep 13, 2013 @12:10 am

    I'm a relatively new lawyer, and I took a course on First Amendment law in law school, but my practice mostly consists of corporate work and I have jack diddly squat litigation experience.

    What's the best way for someone like me to assist? For pro bono issues such as domestic violence and immigration, there are often clinics and other organizations that (a) are looking for lawyers to volunteer and (b) can provide some basic training to people doing this for the first time. Are there any organizations like that for First Amendment work?

  25. Luke G  •  Sep 13, 2013 @5:25 am

    Reading posts like this one always make me feel like one of the bystanders in a war movie, especially a WWII movie, that you see cheering from the side of the road as the heroes march down it to battle and home in victory. But like Myk and Tarrou, if you ever have call for a biologist or need help moving, I'm your guy :D

  26. Anonymous Coward  •  Sep 13, 2013 @7:04 am

    Why did they end up cutting a deal? Sounds like the lawsuit was dismissed…

  27. MDT  •  Sep 13, 2013 @7:46 am

    They cut a deal to avoid being slapped with an ANTI_SLAPP suit. That is, it wasn't Bob that cut a deal, it was Bogus Betty and the Dentist who cut a deal. I'm betting Bob got paid, and the PopeHat Volunteers got paid, not Betty and Dentist.

  28. mcinsand  •  Sep 13, 2013 @8:35 am

    As for fixing the broken system, why not give The Bar more teeth. This suit could not have been filed without the participation of an 'officer of the court,' Bogus Betty. If attorneys knew that they were putting their livelihood at risk by participating in vexatious and/or frivolous litigation, then they would certainly think twice. Or maybe not. The Prenda crowd seems opposed to any thought, at all.

  29. I was Anonymous  •  Sep 13, 2013 @8:39 am

    Well done, guys…

    But why dentists?

    [SEINFELD] What are you, some kind of anti-dentite? [/SEINFELD]

    And OT: What are the odds that Bogus Betty owns a pony?

  30. James Pollock  •  Sep 13, 2013 @9:35 am

    "Ken, you may be aware that there is a push by pro bono groups to offer tort defense to indigent persons."

    Forgive my obtuseness, but why? Aren't the indigent inherently judgment-proof, making pursuing them in tort largely cost-ineffective?

  31. Bren  •  Sep 13, 2013 @9:37 am

    Why are dentists so censorius?

    Because they can't handle the tooth… I'll show myself out.

  32. JLA Girl  •  Sep 13, 2013 @9:38 am

    Awesome work, guys!

    I am a lawyer, Canadian, but no nothing about First Amendment Issues or even Canadian Charter of Rights law. I'd probably do more harm than good on those topics. But if you ever need anything to do with BC car insurance claims/fraud, I'm your girl.

  33. James Pollock  •  Sep 13, 2013 @9:45 am

    "If attorneys knew that they were putting their livelihood at risk by participating in vexatious and/or frivolous litigation, then they would certainly think twice."
    They will also think twice about taking any case that might look like it's vexatious or frivolous, even though it's not. Lawyers, as a whole, are opposed to the idea that people might not be able to get representation for valid claims, so they err on the side of allowing some frivolous suits to proceed to avoid causing any valid claim to go unpressed.
    Kind of the same way the system errs in criminal cases, where we stack the deck in favor of the accused, so that in close cases, guilty go free rather than innocent go to prison.

  34. R R Clark  •  Sep 13, 2013 @10:16 am

    Great to hear about these kinds of wins for the aggrieved parties. Thanks and congratulations to all involved.

  35. DaveCA  •  Sep 13, 2013 @10:18 am

    Anonymous/MDT:
    The terms of and reasons for the settlement are presently confidential, as part of the settlement itself. The case was voluntarily dismissed by the petitioners before the judge added her two cents.

  36. MDT  •  Sep 13, 2013 @10:39 am

    Sorry, I meant to say 'Probably' not that it happened that way. I don't know what actually happened, but I'd bet $5 on that being the result given the events that occurred.

  37. azazel1024  •  Sep 13, 2013 @12:12 pm

    Instead of a loser always pay system, why not a loser sometimes pays system?

    I guess it might not work because the legal system often doesn't, but it could still be nice to see a system where the judge or jury could decide that the lawsuit was of little legal merit and/or was calculated to harass.

    This isn't simply a free speech issue. What about cases where your neighbor with a weed up their ___, decides to file suit against you over a trivial or even rather manufactured incident.

    Or say a former employee files suit over harassment claims, but it turns out that was absolutely no substance to them. Or maybe a former employer sues you for something, but they are really using it as just cause for termination. Or a landlord claiming you damaged their property, with no proof that there was any damage (or they manufacturered post habitation and you as the renter can prove it).

    I am just thinking of a variety of instances of using the law to harass a person.

    I know some of those could easily be the cases of a counter suit, but it seems excessive to me in a lot of cases that you have to go through the effort of filing a counter suit (and sometimes you CANNOT), just to recoup even your legal costs to defend yourself against a suit.

    Its seems like if a judge or jury can find in the course of a lawsuit that the suit was without merit or was calculated to harass that legal fees should be allowed to be awarded to the defendant. Just because you lose a suit doesn't necessarily mean a case was meritless though.

  38. Pope Lizbet  •  Sep 13, 2013 @1:42 pm

    Clarifying: I am in the Nashville area, but I will go to any of the contiguous counties to defend the First Amendment. As long as I don't drive over 100 miles one way, give or take, my firm will not object.

  39. James Pollock  •  Sep 13, 2013 @2:05 pm

    "I guess it might not work because the legal system often doesn't, but it could still be nice to see a system where the judge or jury could decide that the lawsuit was of little legal merit and/or was calculated to harass."

    That's what we have now. But judges are willing to accept extremely tenuous arguments, for fear of arbitrarily denying someone courthouse access.

  40. azazel1024  •  Sep 13, 2013 @2:32 pm

    I sort of understand that part, but I think it should be codified that if a judge gives you the benefit of the doubt and you prove to be a feckless jerk when the lawsuit is finally heard out, that the judge should be able to award legal fees to the defendant. If the case had real merit, IE in effect it went to trial and at trial it doesn't turn out that there is fraud, or falls apart so bad that the judge effectively throws it out, etc, then no legal fees (IE the case had merit).

    I know judges have some capability to do that now, but it also seems like it only occurs in REALLY bad cases, not standard fair for a ridiculous lawsuit.

  41. jig  •  Sep 13, 2013 @6:26 pm

    Would love to see the filings in redacted (or anonymized) form so as to have the cheat sheet. it helps immensely for those of us that don't have all the state procedure down. would also help recognize PI BS when it arrives.

  42. Eli Rabett  •  Sep 14, 2013 @5:36 pm

    You ask What the hell is the deal with censorious dentists?

    Simple, they are not used to people talking back to them.

  43. riesling  •  Sep 15, 2013 @6:42 am

    Ken, why not post the "kick-ass brief" so that others can reuse well-written parts of it in similar situations? Better yet, an online library of such briefs would really kick ass!!

  44. andrews  •  Sep 16, 2013 @6:25 am

    Will you answer the call?

    I'd better not. I am not licensed in California. I can barely spell the name of the state. I have a vague idea that it is somewhere west of Pensacola.

    When something comes up in Cen Fla, yeah, that's different.

  45. andrews  •  Sep 16, 2013 @6:26 am

    (curses, no preview & no edit)
    And, for that matter, a pox on whoever diddled the HTML to add javascript and break the open-in-new-tab functionality.

  46. Nicholas Weaver  •  Sep 17, 2013 @7:20 am

    I have not seen the brief, only the declaration of the PI, and (naturally) the reply I wrote.

    It was very bespoke, and I suspect that the brief was also bespoke, so it wouldn't serve as a template for others.