Tagged: Lawyers Behaving Badly
Back in February I wrote about a rather despicable lawsuit filed by Japanese-American plaintiffs seeking to remove a statue in Glendale, California commemorating the "comfort women" — women enslaved as prostitutes in World War II by Imperial Japan. The plaintiffs argued that Glendale's statute interfered with the United States' diplomatic relations with Japan, thus violating the Supremacy Clause. I'm pleased to report that United States Judge Percy Anderson — not a judge you want yelling at you, for what it is worth1 — has dismissed the case without leave to amend.
The plaintiffs, you might recall, were represented by megafirm Mayer Brown. This resulted in really awful publicity from Mayer Brown, not just from pipsqueaks like me, but from Above the Law and Marc Randazza. Mayer Brown soon substituted out of the case in favor of a rather smaller firm. Meanwhile, defendant the City of Glendale – ably represented by their City Attorney's Office and by competing megafirm Sidley Austin — filed a motion to dismiss the case, arguing that the plaintiffs were clearly incorrect in arguing that Glendale's comfort women statute interfered with the United States' international relations. The motion is top-notch work; I've uploaded a copy here.
In his ruling, Judge Anderson found that the plaintiffs had not alleged any specific facts — as opposed to conclusions — supporting the notion that a city's monument could interfere with national diplomacy. Absent such facts, the complaint failed. Judge Anderson echoed the argument made by many critics that the plaintiffs' theory would make a wide swath of public monuments vulnerable to litigation:
Any contrary conclusion would invite unwarranted judicial involvement in the myriad symbolic
displays and public policy issues that have some tangential relationship to foreign affairs. For instance,
those who might harbor some factual objection to the historical treatment of a state or municipal
monument to the victims of the Holocaust could make similar claims to those advanced by Plaintiffs in
this action. Neither the Supremacy Clause nor the Constitution’s delegation of foreign affairs powers to
the federal government prevent a municipality from acting as Glendale has done in this instance . . . .
Judge Anderson therefore dismissed the federal claim and declined to exercise jurisdiction over the remaining state law claim. He also found that the City's anti-SLAPP motion was without merit because it was directed to a federal claim: generally speaking state anti-SLAPP statutes can only be used against state claims. That ruling spared Judge Anderson the more difficult question of whether a municipality has speech rights covered by the anti-SLAPP statute.
This is the right result. Plaintiff's claim on behalf of reactionary Japanese political interests were only the appetizer; the main course would have been suits against many Armenian Holocaust memorials, brought on behalf of the Holocaust-deniers of Turkey. Citizens, through their local governments, ought to commemorate history as they see fit.
[Update: see resolution at end of post]
Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.
Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.
Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.
Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:
The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.
Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).
Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.
I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?
It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.
Thanks to tipster Carl.
Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.
Mr. Petrick has sought my help. I am lighting the Popehat Signal.
Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?
We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?
Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.
Todd Kincannon is a performance artist working in the medium of outrage — his own, and that of easily gulled critics. Surely you've heard of him. Perhaps you noticed him the time he got Salon in a tizzy over his obnoxious tweets about Wendy Davis, or the time he agitated the Huffington Post with his grotesque tweets about Trayvon Martin, or the time he enraged Daily Kos (and, for that matter, nearly everyone else) by saying transgendered people should be put in camps. Todd Kincannon would like to be Ann Coulter if he grows up, but lacks the subtle charm. Like Coulter — or like a dilatory burglar who only robs the homes of people who leave their doors unlocked — Kincannon relies on people agreeing to be outraged by someone whose purpose is outraging them for lulz, political advantage, and profit.
Now Kincannon, an attorney, claims he is being censored by South Carolina attorney discipline authorities. He's filed what I will very generously describe as a federal lawsuit over it.
It's time for the Popehat Signal — the call for pro bono assistance for a blogger threatened with frivolous and censorious litigation. This time the victim in need of help is Stephanie Yoder of www.twenty-somethingtravel.com. She needs your help to face a thoroughly bogus and repugnant threat by multi-level marketing scheme "WorldVentures."
I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me.
During the Second World War, the Empire of Japan sexually enslaved women — at least tens of thousands, and perhaps hundreds of thousands — to be raped by its troops. They were forcibly seized from the countries Japan occupied, primarily Korea. Though Japan officially apologized in 1993, in recent years right-wing forces in Japan have been seeking to retract those apologies, asserting that the enslaved women were actually voluntary prostitutes, or that the Empire itself wasn't involved in any coercion. This attempted walkback can best be understood in the broader context of Japanese nationalist politics, in which right-wing politicians play to their base by doing things like visiting shrines honoring war criminals.
Now Japanese-American plaintiffs, served by American megafirm Mayer Brown, are pursuing the agenda of reactionary Japanese politicians through despicable litigation.
Glendale, California is a suburb of Los Angeles. I grew up next door and still live there. It's incredibly diverse with many thriving ethnic communities. In 2013 the City of Glendale erected a modest memorial to the comfort women of World War II in a public park next to the library. Japanese politicians were enraged and have repeatedly demanded that the memorial be removed. The federal lawsuit filed by Mayer Brown seeks to have the memorial removed by force of law.
The plaintiffs in the lawsuit — which I have uploaded here — are Glendale resident Michiko Shiota Gingery, Los Angeles resident Koichi Mera, and GAHT-US Corporation, which says it is in the business of providing "accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role." The plaintiffs complain that the presence of the comfort women memorial in Glendale causes them to suffer "feelings of exclusion, discomfort, and anger because of the position espoused by her city of residence through its display and endorsement" of the monument, and that they avoid the park because it shows a "pointed expression of disapproval of Japan and the Japanese people" and diminishes their enjoyment of the park. Though the lawsuit discusses a controversy over what the Empire of Japan did to women in the war, the complaint unsubtly conveys a position: "These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute."
Plaintiffs argue in part that the City of Glendale did not follow its own rules in approving the exact language on the memorial. But their primary argument — the most shocking one — is that the City of Glendale cannot erect such a memorial because it violates the Supremacy Clause of the U.S. Constitution and interferes with the federal government's sole right to conduct U.S. foreign policy.
Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that is neither incidental nor indirect. By installing the Public Monument, Glendale has taken a position in the contentious and politically sensitive international debate concerning the proper historical treatment of the former comfort women. More specifically, given the inflammatory language used in the plaque that is prominently featured alongside the statue, Glendale has taken a position at odds with the expressed position of the Japanese government.
Though the plaintiffs make this argument about the comfort women memorial in Glendale, it is nearly limitless in its application. For instance, though this fight is over a memorial, it could just as easily be about a city council resolution recognizing a day to remember some historical event. Similarly, though this fight is about the agenda of reactionary Japanese forces that seek to suppress discussion of wartime conduct, it could just as easily be about a hundred other historical disputes. If you think that's mere speculation, think again. Glendale, California and the surrounding communities are also home to one of the largest Armenian diaspora groups in the United States. Will Mayer Brown next be suing to force the removal of memorials to the Armenian Genocide, or to prohibit city councils from recognizing it, because it is extremely controversial to apologist forces in Turkey? Given the delicacy of U.S. relationships with the new government of Afghanistan, will someone use the federal courts to police the language of civic war memorials and commemorative statements across the nation, to make certain that they portray the Afghans as our allies?
This is not a First Amendment issue, exactly, because government entities don't have First Amendment rights. But it is an issue of federalism, of local self-determination, and of citizenship. Local citizens, through their local elected government, wished to recognize a historical atrocity using local government money on local government land. Their city did not purport to engage in negotiation with any foreign government or to take any position on behalf of the United States — they just took a position on behalf of its citizens. They did not do anything prohibited by the Constitution, like establishing a state religion. The notion that the federal government or the federal courts should regulate this expression is noxious.
Moreover, the argument against it is vague, unprincipled, and endlessly malleable. If a case like this succeeds, what will the courts say to a Holocaust denier who argues that a memorial is too harsh in condemning Germany, a nation with whom we have dicey relations? The plaintiffs here might argue that the difference is that recognition of the Holocaust isn't controversial and wouldn't anger most Germans, while the comfort women issue has angered Japanese politicians. But that's just another way of saying that foreign politicians should be able to dictate what American towns put on their civic memorials. The more that foreign politicians are willing to make demands and issue denunciations, the less free American towns would be to commemorate historical events. This would drive exactly the sort of entitled, thuggish behavior that Japanese politicians have shown here, issuing churlish demands that a foreign city shut up about their nation's history.
This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences.
Edited to add: It occurred to me what this reminded me of: Croat lawfare trying to get Bob Dylan charged with hate speech for talking about Croat atrocities.
All of Popehat's Prenda coverage is collected here.
It's been two months since I wrote about Prenda Law. Since then its fortunes — and the fortunes of its principals — have been on the wane. Prenda, John Steele, Paul Hansmeier, Paul Duffy, and Mark Lutz have been suffering devastating blows across the country. Any one of these developments would be grave for any normal lawyer or legal enterprise. Combined, they represent a swiftly accelerating rout. Each development makes it more and more plausible that Judge Wright's referral of Prenda's principals to federal prosecutors will yield a grand jury investigation and, eventually, federal criminal charges. To one side, career and financial ruin loom as multiple courts issue brutal and reputation-destroying sanctions; to the other side, the door to federal prison yawns open.
So what's been going on? Let's look at updates state by state, and then turn to last Thursday's big development in Los Angeles. Brace yourself; this is a long post.
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?
All of Popehat's Prenda coverage is collected here.
It really can't be easy to be on Team Prenda these days. Hordes of detractors scrutinize your every legal filing. Mean bloggers say embarrassing things about you. The threat of sanctions always looms. A tangled web of legal proceedings across the country complicates your efforts and constantly generates new evidence and assertions.
So, I guess I can see how a Prendarast could lose his cool on occasion.
Take Jacques Nazaire. Nazaire has found the waters in the Prenda lagoon to be unstill and unpleasant. Craigslist court appearances never generate such negative attention. It's enough to make a man go off on a rant about a witness or launch an ill-conceived detour about gay marriage or rend his garments and bewail how posts by mean blogers "lead to anger."
So: when Mr. Nazaire asked a Georgia federal judge to quash some subpoenas calculated to uncover facts about Team Prenda, it is perhaps understandable that he indulged in a little dig at his detractors:
In addition to the facial defects of the subpoenas, these subpoenas should be quashed because the “Google” and “Comcast” subpoenas are issued for the sole purpose of gathering information of third parties and the undersigned and putting them in display on such websites as “techdirt”, “dietrolldie” and “Popehat”.
Actually, I suspect that the purpose of the subpoenas is to gather evidence to test the theory that Team Prenda, far from being a victim of piracy of pornographic videos, deliberately posted the videos on piracy sites to attract downloaders in a scheme to manufacture copyright violation claims. Watch this space for a discussion of the legal significance of that theory.
Anyway, Mr. Nazaire's gripe was banal and unsurprising — but also rudely exclusionary. How could he have forgotten the site Fight Copyright Trolls, one of the most steadfast foes of Team Prenda? The proprietor of Fight Copyright Trolls wanted to know, too. So he wrote Mr. Nazaire, and got a response. And such a response!
Dear Mr. Nazaire,
In 2:12-cv-00262-WCO Document 68 (filed 08/26/13) you wrote:
10. In addition to the facial defects of the subpoenas, these subpoenas should be quashed because the “Google” and “Comcast” subpoenas are issued for the sole purpose of gathering information of third parties and the undersigned and putting them in display on such websites as “techdirt”, “dietrolldie” and “Popehat.”
I cannot express the extent of emotional distress this paragraph caused to the undersigned. You mentioned three of the major resources that cover Prenda, but failed to include my “fightcopyrighttrolls.” FYI, while my blog is not the oldest, it has the most extensive coverage of the Prenda soap opera: if you navigate to the “Prenda” tag (http://fightcopyrighttrolls.com/category/clans/prenda/), you will find 122 posts, not to mention numerous informative pages. Thus, not including “fightcopyrighttrolls” where it belongs is offensive and scandalous.
Please govern yourself accordingly and refrain from hurting my feelings in the future.
Very truly yours,
Quoth Mr. Nazaire in response:
I like your Mom. She's a nice lady but not so good in the sack. I guess she has too much mileage on that poon.
Tsk Tsk Tsk. All worn out.
You think that you are funny, huh?
How's that for funny?
Now, insulting somebody's mother is a venerable rhetorical device. It can be a stylized vehicle for creativity, as in a yo' momma competition, where it's not actually about any real person. (The geeky ones are the best. "Yo momma so fat, her patronus is a Ding Dong.") It can be delivered to inflame with some degree of style. ("I wrote a paragraph about your blog, SJD, but I left it on your mother's nightstand.") But it can also fall flat and just sound creepy and angry and needy. So it has here.
For someone who spends so much of his time angry, you would think that Mr. Nazaire would be better at it.
Will I write about Prenda again someday? Yes. Meanwhile here is a thread with open comments.
When I make fun of awful legal marketing on this blog, I often borrow Eric Turkewitz' phrase "outsource your marketing, outsource your reputation and ethics." Because some of the incidents we talk about involve small-scale artisanal asshattery, readers might draw the incorrect conclusion that I'm saying attorneys should go with big, established, "reputable" marketeers to get reliable results. Nope. The most established institutions have some of the worst practices in marketing.
Today I'd like to share with you some truly awful spam from Thomson Reuters, and find out how many of our attorney readers received it as well.
Say what you want about the American Bar Association, but it has a certain amount of credibility. The ABA may not be a locus of excellence, but it has a bajillion attorney members, it participates (for better or worse) in vetting judicial nominees, it accredits law schools, it gives fairly popular if overpriced continuing education presentations, and it publishes like a demon. If the ABA recommends a practice, that practice will be seen as normal in the legal profession, or at least not as an outlier.
Should that make us happy? No. No, it should not.
This month the ABA shares with us a collection of legal marketing strategies. I could say that I am shocked, or just disappointed, at the result, but both of those sentiments suggest an element of surprise, which I am lacking.
Confession time: I've always been a little nervous at the dentist. X-rays pointed at my head? Poking my mouth with sharp objects? Using rotating buffers with unidentifiable grape-flavored goo on my teeth? Prone in a awkward chair? Not if I can help it. My dentist is a distant cousin who I've seen my whole life and I still feel like he or his staff might go all Laurence-Olivier-versus-Dustin-Hoffman on me at any moment.
So you can imagine that I'd never trust a dentist who reacts to negative online reviews by having his lawyer threaten the reviewer with criminal charges. Would you?
All of Popehat's Prenda coverage is collected here.
There have been many small-to-medium developments in the Prenda Law saga. I'm preparing for trial, so I won't be covering them any time soon. But I will leave you with one: a consequence for a Prenda Law lawyer in the Ninth Circuit.
You may recall that Prenda figure Paul Hansmeier has dabbled in representing people objecting to proposed class action settlements. Apparently Mr. Hansmeier was seeking admission to the bar of the Ninth Circuit in order to represent an objector on the Groupon class action. The Ninth Circuit, having seen Judge Wright's order, is less than welcoming in an order by an appellate commissioner:
On April 5, 2013, attorney Paul R. Hansmeier entered his notice of appearance as counsel of record for Objector-Appellant Padraigin Browne. At that time, Hansmeier’s application for admission to the bar of the Ninth Circuit was pending.
On May 15, 2013, the court ordered that Hansmeier’s application for admission be held in abeyance pending the outcome of his referral to the Minnesota State Bar and the Central District of California Standing Committee on Discipline in Ingenuity 13 LLC v. Doe, No. 2:12-cv-8333-ODW(JCx) (C.D. Cal. May 6, 2013) (Order Imposing Sanctions). See In re Hansmeier, No. 13-80114.
Because Hansmeier’s application for admission to the court’s bar cannot be approved at this time, he cannot represent parties in this appeal. See Fed. R. App. P. 46(a); 9th Cir. R. 46-1.2. Accordingly, within 14 days after the filing of this order, Hansmeier shall withdraw from this case. Hansmeier’s notice of withdrawal shall contain proof that he has informed Browne that Hansmeier cannot represent him in this court and that Browne may obtain new counsel or represent himself. Hansmeier’s notice of withdrawal shall also contain contact information for Browne unless a notice of substitution of counsel has been filed by the time Hansmeier files his notice of withdrawal.
Failure timely to comply with this order may result in sanctions.
In other words: no, Paul, you can't have admission to the Ninth Circuit until this is cleared up, and we won't let you represent a client before us in the interim.
Actions have consequences.
(Thanks to a tipster for word of this order)
Remember Joseph Rakofsky? He's the brand-new lawyer who thought it was prudent and appropriate to attempt, as his first trial, the defense of a man accused of murder. Havoc ensued. A federal judge granted Rakofsky's request to withdraw, which coincided with the defendant's request for a new lawyer, and granted a mistrial. In doing so the judge said that in the alternative he would have granted a new trial based on Rakofsky's incompetence:
I must say that even when I acquired [sic -- probably "inquired of"] Mr. Deaner [the defendant], I — as to whether or not, when the Court found out through opening, at least near end of the opening statement, which went on at some length for over an hour, that Mr. Rakofsky had never tried a case before. And, quite frankly, it was evident, in portions of the trial that I saw, that Mr. Rakofsky — put it this way: I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.
It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.
So I am going to grant Mr. Deaner's request for new counsel. I believe both – it is a choice that he has knowingly and intelligently made and he understood that it's a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable perrson could expect in a murder trial.
And later in that hearing . . .
And I think that the – As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.
This was widely reported, resulting in Rakofsky suing a ridiculous array of news outlets and lawbloggers, and stubbornly pursuing those claims in what became known as "Rakofsky versus the Internet."
Last week he lost — a judge granted motions to dismiss his case. That represented two major victories last week for Marc Randazza, who not only represented many lawbloggers in Rakofsky's case, but also crushed infamous copyright troll Righthaven on appeal. This will not make him any easier to live with.
Rakofsky's lead argument was that he was defamed because his detractors reported that a judge had declared a mistrial based on his incompetence, when in fact the judge had declared a mistrial based on the defendant's request and had only said that in the alternative he would have granted a mistrial based on Rakofsky's incompetence. The correct rejection of this argument is a good example of the substantial truth doctrine, also known as the "gist" or "sting of it" doctrine — the rule that says that a statement isn't defamatory if the main insulting thrust of it is true. So, if you accuse me of molesting squirrels in a public park, and I sue you for defamation on the grounds that my companion was a chipmunk and I was in the storm drain adjacent to the park, my defamation suit against you should not survive. (Unless, I suppose, we live in a community where squirrels are held in high esteem but chipmunks are generally despised.) Here, it was patently ridiculous for Rakofksy to maintain that the "mistrial resulting from incompetence" story was meaningfully misleading or false. The trial judge was brutally frank in his evaluation of Rakofsky's ability, and trial judges don't just go around letting defendants change lawyers mid-trial for no reason.
There are a few lessons to learn from this regrettable affair.
1. Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.
2. Rakofsky doubled down. Had he slunk away after his grave error in judgment, giving thanks that his rashness did not lead to someone being convicted, he might have learned the trade, become a competent lawyer, and overcome a brief flurry of bad publicity. Instead, he chose to file a vexatious lawsuit. Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.
3. Yielding to censorious thuggery like Rakofsky's is harmful to your reputation. Cowardly and unprincipled University of St. Thomas School of Law, I'm looking at you. You yielded to a frivolous suit and taught your students and alumni a terrible lesson about being a lawyer and a citizen. You encouraged vexatious and speech-chilling litigation. Let your cringing suckitude be proclaimed throughout the land.
4. Judge Wright's photon torpedo salvo notwithstanding, most judges are reluctant to award sanctions even against conduct that richly deserves it. Here the judge declined to award sanctions against Rakofksy. I'm inclined to agree with Scott that Rakofsky's youth, inexperience, and nationwide humiliation probably stayed the judge's sanctioning hand.
5. If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should.
All of Popehat's Prenda coverage is collected here.
When last we left the Prenda Law team, it was reeling from a devastating sanctions order and referral for criminal investigation. Now, as predicted, defense attorneys across the country are filing that order in cases brought on behalf of Prenda Law clients.
This has already led to one comical result.
You may remember that Attorney Jacques Nazaire, representing Prenda Law entity AF Holdings in Georgia, filed an angry and rather bizarre opposition to a defendant's motion for sanctions there. Now, in response to that defendant filing Judge Wright's order — which is what Judge Wright clearly contemplated, and which involves informing the Georgia federal court of an order that is patently relevant to the proceedings — Jacques Nazaire has doubled down and flipped out.
In his objections to defendant Patel's filing of Judge Wright's order about Prenda and AF Holdings, Nazaire argues that the filing is late and not authorized by the local rules, because it is effectively a "sur-reply" – that is, a reply to a reply. That's what just about any lawyer would say; it's within the realm of reason.
9. While this Court may or may not agree with some of the issues presented in
the California case, unbeknownst to the defendant, the California case will not necessarily become a mandate on this Court. It is solely within the discretion of this Court to follow or not follow the decisions made in the California case.
10. The defendant should realize that California has different laws than
Georgia, a different Governor than Georgia; a different legislative body than Georgia, different business needs than Georgia and different views than Georgia and as such all of its decisions cannot serve as a mandate for Georgia.
11. For example the California Courts have legalized gay marriage. Perry v.
Schwarzenegger 704 F.Supp.2d 921 (N.D. Cal., 2010);Certified question, 628 F.3d 1191 (9th. Cir.); Answered 52 Cal.4th 1116 (2011) Affirmed, 671 F.3d 1052 (9th Cir.) Such a decision cannot serve as a mandate on Georgia Courts to legalize gay marriage as well.
Sure, Nazaire is trying to make a point that the decisions of a United States District Judge in one state do not dictate the decisions of a United States District Judge in another state. But he's doing it in a hilariously silly and inflammatory way. Moreover, the core argument is misleading: both cases are copyright cases premised in federal law, and Judge Wright's decision was premised in federal law. This isn't a case about California or Georgia state law.
Nazaire then proceeds to start throwing Prenda principals under the now battered and flat-tired bus, suggesting he shouldn't be sanctioned:
19. Defendant also argues that plaintiff’s counsel should have made reasonable inquiry of the signature. Prior to filing the document, the undersigned contacted Prenda Law to find out whether or not Mr. Cooper would be available to testify at trial but was advised that they could not locate Mr. Cooper. The undersigned was advised that Mark Lutz and Peter Hansmeier would be available to testify as witnesses. Had the undersigned realized that the Electronic Frontier Foundation was hanging with Mr. Cooper, he would have been able to track down Mr. Cooper and questioned him about the documents. It turns out that Mr. Cooper was a caretaker of one of the properties of a Prenda Law member and had left said property in August, 2012.
20. Therefore, even if the undersigned had placed a knife to the throats of each of Prenda’s members, none would have been able to give him Mr. Cooper’s contact information at the time on November 5, 2012 when Plaintiff commenced its law suit. It is certainly not the first time a company has lost contact with an agent (or alleged agent as stated).
I'm going to give Mr. Nazaire Internet Points for responding to Star Trek references with a "Hangin' With Mr. Cooper" reference that is far more subtle.
Nazaire is also infuriated that his opposing counsel submitted one of his emails:
32. Additionally, an email containing information that was sent by the undersigned, in strict confidence, to Mr. Chintella was presented as evidence in that California case by Mr. Chintella. Chintella went behind plaintiff’s counsel’s back without any notification and submitted the email contents as evidence in order to influence the California case; the same case that now he presents to this Court as a mandate; the same Georgia case from which he intends to profit.
Yeah, here's the thing: if you write something to opposing counsel, especially in a case like this, you should expect it can get filed in court if it's relevant.
Nazaire's filing is furious and more than a little manic.
Is this real life?