Things have been relatively quiet on the Rakofsky front.
You remember Rakofsky, right? He's the guy who graduated from law school, took on a murder case as his first-ever trial, and did so badly that the judge said he would have granted a mistrial if the defendant hadn't asked for a new lawyer? The guy who then sued all the media outlets and bloggers who made fun of him, drawing vastly more attention to his incompetence and attracting formidable First Amendment lawyers to oppose him? That Rakofsky. Try to keep up, would you?
Anyway, even though nearly everybody has filed a motion to dismiss, the Rakofsky v. Internet case has been slow, because Rakofsky's lawyer abandoned ship and the judge stayed the case until Rakofsky could get a new one, which he may or may not be trying to do in spectacularly pathetic fashion on Craigslist.
So: many motions to dismiss were pending, they all look very likely to succeed, there was really very little pressure for anyone (other than Rakofsky) to do anything.
It's rather odd, therefore, that two defendants caved and paid Rakofsky $5000 to settle his frivolous suit.
Now, I tell clients all the time that settling a civil suit is a business decision, not a moral decision. The system sucks — it allows people to bring frivolous claims with very little cost to them, and defending those claims involves ruinous expenses for the defendants, even if the claims (like Rakofsky's) are utterly baseless. Usually it's just good sense to settle a case for $5000 if defending it would cost $50,000.
But there exceptions. Some defendants can't afford to settle because doing so would be blood in the water bringing a swarm of frivolous suits. It would cost more money, not save money. Other defendants can't settle for reasons of principle: settling would undermine what they stand for.
This is such a case.
Confessions where they are due: on rare occasions, we here at Popehat have refrained from posting something when there was a clear and present danger that a frivolous lunatic would sue us for it. But we're amateurs running a tiny blog. St. Thomas is a law school. As an institution of learning, they are supposed to support freedom of expression. As a law school, they are supposed to stand for legal excellence, and supposed to support public dialogue about the adequacy of lawyering, particularly when that lawyering is provided to criminal defendants.
Rakofsky sued St. Thomas and Hackerson for this:
186. On April 6,2011, ST. TIIOMAS through HACKERSON, with malice and hate, in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties, in reckless disregard for the truth, published that “Recent Law Grad’s Incompetence Leads to Mstrial.” However, there was no mistrial, either in whole or in part for incompetence on the part of RAKOFSKY, the “recent law grad” referred to in their publication.
In fact, what St. Thomas and Hackerson said was indisputably true based on documents in the public record: the trial transcript showed that the judge declared a mistrial on the alternate grounds that the defendant (reasonably) wanted a new lawyer and that there was a "manifest necessity" because of the inadequacy of Rakofsky's performance. The potential defenses to Rakofsky's malicious and frivolous suit were legion.
But St. Thomas caved. (I suspect that Hackerson, having accepted St. Thomas' offer to defend her, had no say in it — as an individual staffer at the school, I don't blame her for letting this happen.) St. Thomas gave in to extortion, rewarded a frivolous censorious twit, and handed him money that he will use to attempt to censor others. In doing so, St. Thomas has encouraged, empowered, and emboldened litigious thugs everywhere, including but not limited to thugs who don't like public comments on the quality of legal services they provide. That hurts us all. We get spam because one person in ten thousand responds to it; St. Thomas is the guy who sends $50 to make his dick bigger, ensuring that we all get spammed.
Some have suggested that St. Thomas was forced into this settlement by their insurer — Scott Greenfield summarizes why that is unlikely.
Why would St. Thomas cave like this? Is it mere cowardice and lack of character by the decision-maker at St. Thomas?
Or could it be something about the character and culture of St. Thomas?
The University of St. Thomas School of Law has established itself not only as an outstanding law school but also as an exceptional place to be a law student. The School of Law was ranked from number 1 to number 4 for the “Best Quality of Life for Students” by the Princeton Review for five straight years from 2004 to 2009.
While a number of factors contribute to this quality of life at the School of Law, including our beautiful building and remarkable faculty, our students clearly are the biggest factor in shaping the sense of community.
The creation of a great law school begins with a mission that draws passionate students from across the political spectrum who want to improve the world in which they live. Although debate is common and often intense, students understand their role in maintaining the quality of life that initially drew them to St. Thomas. In the classroom, in co-curricular activities and in daily interaction, students maintain a culture of dignity and respect.
The University of St. Thomas fosters an environment in which each student feels both supported in his or her unique journey from law student to lawyer and called to share his or her gifts to enrich the collaborative learning community.
In the classroom we have a curriculum that forges knowledge and skills the legal community believes lead to complete professionals. That means not only the academic rigor to give students the knowledge
that they need, it also means a focus on ethical decision making and relational skills that employers and those currently in the professions tell us are essential to a lifetime as a happy, healthy, and productive member of the legal community.
In short, St. Thomas appears to employ a faith-based appeal to the sentiments of what Scott Greenfield would call the slackoisie — the people who feel that law school should make them feel good about themselves, as a matter of good customer service.
Listen to me: a law school calculated to make students feel good about themselves is as ridiculous as a Marine boot camp designed to make enlistees feel good about themselves. Law students, God help us, will one day be lawyers. When they are, nobody will care about their self-esteem. The prosecutors seeking to jail their clients will not be seeking to foster a sense of community. The opposing civil lawyers seeking to bankrupt their clients will not be promoting a culture of dignity and respect. Most law practice is about conflict. It's a bloody, ugly street fight. Self-esteem borne of law-should-be-harmony is useless to clients. The only self-esteem useful to clients is self-esteem earned by hard work, determination, command of the subject matter, and the willingness to stand up to adversity. People who object to law professors being wickedly Socratic, and classmates being cutthroat, are missing the point. If you're put off by a Socratic professor, Mr. Fluffy Bunny, a run-of-the-mill judge is going to make you soil yourself. If nasty, backstabbing classmates upset you, the first time you get into a nasty letter-writing campaign with an opposing counsel you're going to have a breakdown. Law school is not a fucking spa day. It's training to stand between your client and whatever the world throws at him.
You can see where I am going with this. Of course a law school that markets itself based on harmony, and self-esteem, and community will cave in a heartbeat when sued for defamation based on a critical article. Sure, it's unfortunate that someone patently unqualified attempted to try a murder case, but couldn't we have been constructive about it? Litigation is so unpleasant. If the litigation had persisted, there might have been nasty articles in the paper, and St. Thomas' students might have suffered interruptions in the tranquility of their beautiful minds. And this Rakofsky fellow — what about his self-esteem? Is he not part of our broader community? Better to settle this.
And so an institution of higher legal education — nominally concerned with quality of legal work, allegedly devoted to excellence, supposedly engaged in teaching people about fundamental American values like freedom of expression — dropped to its knees.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017