Declarations and Exclusions

Let's Get Small

Mainstream legal reporting has its moments of accuracy, but also tends to be liberally larded through with misstatement, omission and dollops of authentic nonsense, especially when the report claims to have uncovered a burgeoning "trend." The Los Angeles Times succumbs to the hazards of the course today—on Page One, no less—as it ventures into the mysterious realms of the Small Claims Court and consumer class action law in a garbled story that seems to be about the former but that is really more concerned with the latter.

The Times pegs its report to a dispute between "angry consumer" Heather Peters and Honda Motor Company:

The Los Angeles resident is miffed that her 2006 Honda Civic hybrid doesn't get its claimed fuel economy. And she isn't satisfied with a proposed class-action lawsuit settlement that would give trial lawyers $8.5 million while Civic owners would get as little as $100 and rebate coupons for the purchase of a new vehicle.

But Peters believes that she found a venue where she can win justice and where Honda can't spend a single dollar on legal help.

On Jan. 3 she'll take her case to Small Claims Court in Torrance, where California law prohibits Honda from bringing an attorney. She's asking for the maximum of $10,000 to compensate her for spending much more on gasoline than expected. Honda said the Civic would get about 50 miles per gallon, but because of technical problems the car gets closer to 30 mpg.

By way of background: in California, the Small Claims Court exists as a division within the larger Superior Court. (Other jurisdictions, of course, have equivalent institutions, but California is the focus of the Times story, and of this blog.) The purpose of Small Claims Court is to take disputes involving relatively small amounts of money out of the more formal judicial system, in the hope that the claims can be resolved more quickly and at less expense than in a full-scale court case. A Small Claims case can often be concluded within weeks of filing, rather than the months or years entailed in a "real" lawsuit. Hearings are somewhat informal, and rules of evidence such as the hearsay rule are more loosely applied.  Typically, Small Claims cases are not heard by an actual judge. The hearing officer will most likely be a local volunteer attorney sitting as a temporary judge on the Court’s behalf.  The hearing officer is expected to apply the law as any other court would, but the relative informality of the Small Claims process inevitably leaves open the potential for some to go Solomonic and to do "what seems fair" regardless of legal niceties.

So then, to return to the Times report:

One point that the story alludes to but never states plainly—"burying the lede" as the journobloggers like to say—is that the jurisdictional limit on California Small Claims cases will be increasing as of January 1, 2012. Ms. Peters will be permitted to claim as much as $10,000 only because her hearing is scheduled for the first court day of the new year. If the case were heard today, the maximum award would be only $7,500.

• The increased jurisdictional limit has some oddities of its own. First, the $10,000 maximum only applies to claims asserted by actual human plaintiffs. Corporate plaintiffs are now, and will remain, able to seek relief in Small Claims Court only up to $5,000. For reasons that are not at all plain, the existing $7,500 limitation will remain in place even after January 1 for claims of "bodily injuries resulting from an automobile accident," in cases in which the allegedly negligent defendant "is covered by an automobile insurance policy that includes a duty to defend."

The claim by the Times that "Honda can't spend a single dollar on legal help" is bunk. The only thing Honda cannot do is send a lawyer to appear at the Small Claims hearing itself. Up to the courthouse door, Honda can (and presumably will) spend whatever it wants to obtain advice and assistance from its attorneys in preparing to put on a defense. Honda can be represented at the hearing by any employee it designates, so long as that employee is a non-lawyer whose primary job is something other than appearing for the company in Small Claims court. Whoever that employee may be, it is near to inconceivable that he or she will not have been fully briefed and prepared, armed with all necessary evidence, and likely supplied with a written legal brief, drafted behind the scenes by counsel, for the "guidance and assistance" of the hearing officer. To the extent that insurance coverage applies, Honda's liability insurer may well be paying for the necessary legal consultation.

Also not mentioned by the Times: if Ms. Peters claim results in a judgment against Honda, Honda has the option of appealing that judgment. In California practice Small Claims defendants have a right of appeal, but Small Claims plaintiffs do not. A small claims appeal goes before an actual Superior Court judge and is heard de novo: that is, it is an entirely new hearing, as if the original Small Claims proceeding had not happened.  More pertinent to the unreliable theme of the Times story: in Small Claims appeals, the parties are entitled to be represented by an attorney at the hearing, as Honda surely would be. 

Having glossed over the extent to which attorneys can and will involve themselves in Small Claims litigation, the Times sets its controls for the heart of hyperbole and and runs straight on into trend-spotting cliché:

If she's successful in getting others to follow her example, Peters could inspire a whole new litigation strategy in the auto industry and other businesses. Working together but filing lawsuits independently, consumers could force companies to go mano a mano with individual plaintiffs in far-flung courtrooms nationwide.

Call it a small-claims flash mob.

"This could create a lot of problems in the industry," said Aaron Jacoby, the Los Angeles defense attorney who heads the automotive industry group at the Arent Fox law firm.

Dewy-eyed invocations of "social networking and the Internet" follow, leading to the inevitable "to be sure" caveat and the equally inevitable exception to the caveat. Small Claimants have to "prepare arguments" and take time from work to show up in court, don't you know? It can be "daunting," adds attorney Jacoby, who almost certainly had more potent things to say than the 16 words the Times elected to quote. But...

there also could be some benefits, beginning with 'cutting the attorneys out of the equation in these cases,' said Richard Cupp Jr., who teaches product liability law at Pepperdine University.

Why might "cutting the attorneys out" be an unalloyed Good? In a further exercise in lede-burying the Times pivots its attention from defense counsel to plaintiffs' attorneys and strikes up what appears to have been the intended true theme of the story: the well known, often painful disconnect between the remedies that are obtained for individual class action plaintiffs—in the Honda cases, $100 to $200 cash and a potential discount of between $500 and $1000 on future Honda purchases—and the rather larger remedies obtained by the much smaller class of lawyers representing them—here, reportedly a share of $8.5 million in fees. One such lawyer is quoted expressing his pride in what he and his compatriots have wrought in crafting the settlement; his personal stake in the payout goes unquantified.

In the concluding segment of the story, we return to Peters and learn that this angry consumer may not be nearly so angry with Honda and its lawyers as she is with class counsel:

If successful, Peters, a state employee, could win damages many times the payment she would derive from the settlement. It helps that she's a former attorney herself (she let her license expire a decade ago), and thus has an easier time navigating the legal system than a typical consumer.

Although Peters hopes that others might also pursue their claims in Small Claims Court, she said if she wins a significant award, the figure could be used to scuttle the proposed class-action settlement in favor of one that would exact more money from the automaker.

'I am just trying to give people a tool kit that shows they have options besides capitulating for $100 or going out and hiring an expensive attorney,' Peters said.

Savvy State-employed recovering lawyer that she is, Heather Peters' decision to proceed in Small Claims Court suggests a calculated assessment on her part that whatever actual damages she or other individual Honda buyers may have sustained amount to something more than a few hundred dollars, but something less than $10,000 apiece. If that is the case, then she is likely right to think that proceeding by a class action offers no real advantage to her in terms of time and resources invested or the size her ultimate recovery. Going that route will not, however, eliminate Honda's attorneys entirely from the mix, much as the Times might wish it.

~~~

Update [1300 PST]: Portland, Oregon-based class action attorney David Sugerman adds a few insights on his blog, including links to Heather Peters' website opposing the class settlement and to her Twitter feed. Interestingly, at this writing, Ms. Peters herself has not linked to the Los Angeles Times story.

Here's a question I am at least somewhat curious about: Who is responsible for this story coming to the Times' attention in the first place, and for building this into a front page story in a fading-but-still-relatively-major metropolitan newspaper? Is Ms. Peters handling her own PR?

~~~

Photo: Tiny World Courthouse, Chambersburg, PA, via Ed South's Wonderful World of Blog. Post title lifted from Steve Martin, ca. 1977.

The Evidence of Things Not Seen

In August, Scott Greenfield (Simple Justice) posted an item ("Where's the Proof?") looking askance at the increasing number of law schools that are apparently treating the law of Evidence as an elective, rather than a mandatory subject. (Antonin Pribetic promptly followed up with a Canadian perspective on the subject on The Trial Warrior Blog.) Scott's post took aim at the notion that future attorneys who won't be spending their time in a criminal or civil courtroom have no real "need" to learn Evidence as a discipline, that it is somehow not relevant to their expected practice. He begged to differ:

The teaching of evidence in law school is not in anticipation of someone being a litigator. Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that's not where it ends. Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law. Yes, M&A. Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence. Why? Because every aspect of law entails a potential of dispute leading to litigation. Any lawyer who doesn't comprehend evidence cannot competently perform his function.

If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer.  If you don't get them, you can't think. You can't reason. You can't understand things the way a lawyer must.

Evidence is that important, to the way that lawyers think and to what they think about. It should if anything be even more important to the way that courts and other judicial bodies go about making decisions that affect or bind or burden those who come before them. In light of that, I was taken aback this week by the case of Kaiser Foundation Hospitals v. Wilson [PDF], in which the California Court of Appeal was prepared with surprising ease to find that the Legislature intended to toss aside one of the nre venerable precepts of the law of evidence: the general prohibition on Hearsay.

Hearsay, you will recall, is evidence in the form of an out of court statement submitted for the truth of its content. For instance, if Tom takes the stand and testifies that "I heard Dick say that Harry ran that red light," that testimony is hearsay if you are offering it to prove that Harry did in fact run that red light. Subject to a bundle of exceptions, hearsay evidence is generally inadmissible—that is, it is not to be heard or considered by the trier of fact—and for fairly obvious reasons: it is at least two steps removed from direct observation of the facts (not "I saw x" but "I heard someone say that they saw x") and, like a message passed from ear to ear in a game of "Telephone," becomes unreliable and subject to easy manipulation pretty quickly.

In the Kaiser v. Wilson case, the Court of Appeal took a look at Code of Civil Procedure section 527.8, which authorizes employers to obtain restraining orders and injunctions against those who are shown to p0se a threat of violence toward their employees. Kaiser Foundation Hospitals believed Jeff Wilson to be such a person: according to Kaiser, Wilson threatened violence against at least two specific Kaiser employees after his wife's employment with Kaiser was terminated. Kaiser applied to the Superior Court for injunctions prohibiting Wilson from violence or threats of violence against those employees, and the court granted the petition. Wilson appealed, arguing that nearly all of the evidence considered by the Superior Court was hearsay that should not have been admitted or considered in support of the injunction. 

The Court of Appeal concurs with Wilson's first premise, that the evidence offered by Kaiser was almost entirely hearsay. However, the court looks at the language of the controlling statute and concludes that in these particular cases the Legislature intended to toss aside the usual prohibitions on hearsay evidence.

Code of Civil Procedure section 527.8(f) requires a hearing before an injunction can issue, and requires "clear and convincing evidence that the defendant engaged in unlawful violence or made a credible threat of violence" as a prerequisite to the judge's decision to grant the injunction request. That same subsection also provides:

At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry.

(Emphasis added.)

The appellate court's analysis of the statutory language proceeds from the somewhat unexpected premise that there is "no relevant legal authority regarding the extent to which the rules of evidence do or do not apply" to hearings under this statute. The court is curiously mum as to why it would not presume that the rules of evidence do apply to these cases as they would in most any other Superior Court hearing, especially one in which the standard of proof is defined as "clear and convincing evidence." In the absence of that presumption, the Court of Appeal opines that the reference to "any testimony that is relevant" should be taken to "suggest[] that the Legislature intended to permit a trial court to consider all relevant evidence, including hearsay evidence, when deciding whether to issue an injunction to prevent workplace violence...." (Court's emphasis.) The court takes note that hearsay is inadmissible "[e]xcept as provided by law," but deems the injunction statute's silence on the subject to create such an exception. 

The decision displays a touching confidence in the abilities of trial court judges, who "are particularly aware of the potential unreliability of hearsay evidence, and are likely to keep this in mind when weighing all of the evidence presented." In fact, the court notes that the trial judge in this particular case remarked that the weight he would give the hearsay testimony—the overwhelming majority of the evidence presented—was "not going to be a lot." All of which begs the question, if the hearsay evidence is not going to be given much weight to begin with, how can it be viewed as the sort of "clear and convincing" evidence that is required to support the injunction? Is it unreasonable, before as court imposes significant limitations on a defendant's activities or speech, to require the employer to produce direct evidence of a threat against a particular employee—for instance, the employee's own testimony concerning how the threat was conveyed or perceived—rather than secondhand testimony that someone else "heard" or "was told" of a threat?

I hold no brief in favor of violence, in or out of the work place, but my sense is that the courts in this case have allowed one laudable policy goal, protection from threats and violence, to trump a policy that is at least as laudable and necessary: the policy that evidence should not be considered when, as in the case of hearsay, it is by definition frequently unreliable and always disconnected from direct perception and personal knowledge of the facts it purports to establish.

The rules of evidence have developed over time to provide a degree of confidence in courts' factual findings and for the protection even of bad actors such as Wilson is claimed to be. It troubles me that an appellate court, particularly in the absence of an unequivocal statement of legislative intent, should be so willing to sweep them aside in the name of good intentions.

~~~

A gratuitous and irrelevant postscript:

This reminds me of an exchange heard in a Los Angeles courtroom many years ago.

ATTORNEY A:    Objection. Hearsay.
ATTORNEY B:    Yes, your Honor, but it's really good hearsay.... 

~~~

Illustration: Gossips in the Altstadt, Sindelfingen, Germany, via Wikimedia Commons.

Well, Hush My Puppies! Texas Allows Recovery for Sentimental Value of Accidentally-Euthanized Dog

In law school many a year ago, our Real Property professor assured the class one day that "you can find authority for either side of any legal proposition in the opinions of the Texas Court of Civil Appeals." How right he has proved to be.

The Court of Appeals for the Second District of Texas (Fort Worth) ruled earlier this month that the owners of a dog that had been erroneously euthanized by an animal shelter "can recover intrinsic or sentimental damages for the loss" of their pet.

The case is Medlen v. Strickland (11/3/2011), and the facts before the trial court were largely undisputed. The Medlens' dog "Avery" escaped from their yard and was eventually picked up by Animal Control and taken to a shelter. The Medlens quickly learned their dog's whereabouts, but when Jeremy Medlen showed up to retrieve Avery, he was unprepared to pay the necessary fees for the dog's release. Jeremy was told that he could return in the morning, and Avery's enclosure was marked with a "hold for owner" tag. Carla Strickland, a shelter employee, made a list of dogs to be euthanized that evening and, for whatever reason, overlooked or ignored the "hold for owner" tag. When Jeremy Medlen returned with the requisite fees the next morning, he learned that Avery had already joined the choir invisible.

The Medlens sued Strickland for her negligence in bringing about Avery's death. They acknowledged that Avery had had little or no market value, but argued that they should be able to recover "sentimental or intrinsic value" because Avery was "irreplaceable." The trial judge ruled that those damages were not recoverable and dismissed the case; the Medlens appealed.

The trial judge was persuaded by a Texas Supreme Court decision from 1891, Heiligmann v. Rose, in which the plaintiff's three dogs had been poisoned by a neighbor. The evidence there showed that the dogs' market value (in the sense of what they could have been sold for) was about $5 each, but the Texas Supreme Court found that a higher amount of damages could be recovered based on the owner's showing of the dogs' "usefulness and services." In the 120 years since, the state Supreme Court has not revisited the valuation of a companion animal, and Heiligmann had come to be interpreted to mean that the only way to recover anything other than "market value" for an animal's death is by the sort of showing of "usefulness" to the owner that had been made in that case.

Since Heiligmann, however, the Texas high court has considered how to value other sorts of property found to be lacking in true "market value." In particular, a line of cases has determined that "sentimental" value can be considered when the property that is damaged or destroyed—such as family photos, keepsakes, heirlooms and the like—is of value to no one other than its owner. On appeal in this case the Medlens argued, and the Court of Appeals agreed, that a consistent interpretation of the law should require that animals with purely sentimental value be valued in the same way as any other kind of market-valueless property. In other words, because the dog has no value otherwise determinable, the court concluded that its sentimental value provides the proper measure of damages.

The Court of Appeals in Medlen is insistent that it is only "interpreting" Heiligmann, not overruling it. (As an intermediate appellate court, it has no authority to actually overrule a Supreme Court decision, however old that decision may be.) In its interpretation, however, the Court expressly declined to follow relatively recent decisions from other divisions of the Court of Appeals that have construed Heiligmann to limit or preclude sentimental value as a consideration in animal cases. The upshot, then, seems to be—but don't take my word for it, since I am not a Texas lawyer—that Heiligmann remains "good law" but that there is a division of opinion within the Court of Appeals over how it should be applied. Presumably a Texas trial court not within the Second District could elect to follow the rule as interpreted in other Districts' opinions. So the true "rule" in Texas is actually undecided, until such time as the Texas Supreme Court itself revisits the question.

    California Consequences?

Does Medlen have any immediate impact in California? In my view, it should not. In addition to the fact that decisions of out of state courts are not binding upon California courts, the underlying premise of the Medlen decision—that the purely sentimental value of some types of property is compensable in damages—is not consistent with settled California case law and statutes.

Decs&Excs readers may recall that the current state of the law in California turns on two recent decisions. In the 2009 case of McMahon v. Craig, the Court of Appeal found that an animal owner cannot recover damages for emotional distress or "loss of companionship" of an animal that is injured or dies as a result of negligence. More recently, in June 2010, a different division of the Court held in Kimes v. Grosser that the "reasonable" costs of treatment—however that may be determined—can be recovered when an animal is injured, even when those costs substantially exceed the animal's de minimus market value.

Both McMahon and Kimes considered the doctrine known in California as "peculiar value." Peculiar value is the value of property that is unique to its owner, and the doctrine is closely equivalent to what the Texas court calls "intrinsic value." California law differs from Texas law, however, in the manner in which this peculiar/intrinsic value is determined. Unlike the post-Heligmann cases relied upon in Medlen, which specifically permitted "sentimental" value as an element of "intrinsic value," California courts (and federal courts applying California law) have consistently ruled that "peculiar value" must be determined on a "rational" basis, and that sentimental value is a factor that is not to be considered in making that.

Also notable: the concept of "peculiar value" is a creature of statute under California law, codified since 1872 as Civil Code §3355. That statute provides for recovery of peculiar value damages, but only in cases of "willful wrongdoing"—i.e., not in cases where the cause of loss is mere negligence, as in Medlen—or in cases in which the defendant had "notice" of that value prior to the loss occurring.

The current majority rule across the States is that animals are personal property and that market value, or some rationally determined pecuniary value other than mere sentiment, is the appropriate basis on which to calculate damages for loss of an animal. In my opinion, Medlen is most likely not a harbinger of a national shift away from that eminently sensible rule. Medlen is likely to be cited by plaintiffs in animal cases going forward, however, until it is eventually either accepted or expressly rejected on a state by state basis.

~~~

Illustration: "In Disgrace" by Bessie Pease Gutmann. And yes, there was a copy of this classic on my bedroom wall when I was but a young pup of a wee sprat.

 

Weekend Update: Rakofsky v. Internet Week 25 — "Extra Tentacles, Please" Edition

This is the tenth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 95 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings/Commentary

Decs&Excs has not posted on this case since the Week 13 Update, because the Rakofsky litigation had been largely quiet—until the past few days when, like some tentacled legend of the deep, it burst again into view, vaster and more monstrous than ever before.

In the interim between Updates, on September 15, the Court finally heard and granted the long-pending motion to admit Marc Randazza pro hac vice to appear on behalf of the Group of 35 defendants that includes this blog. At the same time, the Court set a March 14, 2012, date for consideration of any and all pre-Answer motions—motions raising procedural, jurisdictional or other objections that may appropriately be addressed prior to a defendant admitting, denying or otherwise responding to the factual assertions in the First Amended Complaint—and a related briefing schedule. The Court also set a November 15 deadline for Rakofsky to find an attorney to take over representation of the plaintiffs following the withdrawal of former counsel, Richard Borzouye. (See the Decs&Excs Week 11 Update.) If no new counsel is found, Rakofsky—who is admitted to practice law in New Jersey, but apparently not in New York—will be permitted to continue to represent himself, but only as an individual plaintiff. The Rakofsky Law Firm, a professional corporation, will not be allowed to proceed with its claims unless an attorney is found to represent it. Proceedings are otherwise stayed until such time as the Court permits them to proceed. The Court's scheduling and stay order is viewable here [PDF].

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  On August 25, Eric posted the news that, the Court's stay order notwithstanding, Joseph Rakofsky has filed a new motion seeking a smorgasbord of remedies and relief. Eric has uploaded a scanned copy of the motion here. 

What does Mr. Rakofsky want from this motion? His wish list includes:

• Permission to serve subpoenas on Google and certain web hosts as part of his effort to obtain the identity of the author of a now-withdrawn blog post formerly hosted on Blogspot, and of anonymous/pseudonymous commenters who have written mean things about him on the BanniNation.com site;
  
  
•  "[A]n order to preserve electronic data and forbidding any party from destroying, altering, deleting or spoiling their communications, documents, other material or content relevant and material to this case."
  
  
  • This is apparently an attempt to prevent any of the defendants from deleting their allegedly offensive writings about Rakofsky. It is an ironic request, given that Rakofsky himself quickly deleted his own websites when they became subjects of scrutiny among bloggers. (Some portions of Rakofsky's sites were saved and preserved via cached information; they are viewable here.)
    
    
• Permission to file a Second Amended Complaint, in which Rakofsky's claims are reorganized and restated and some 14 new defendants—among them, Google, Yahoo, Techdirt, various units of The Atlantic, Thomson Reuters Canada, and Canadian Lawyer Magazine—are added;
  
  
• A call for unspecified investigations of unspecified parties or counsel by New York disciplinary authorities;
  
  
• An order for monetary sanctions against Rakofsky's own former counsel, Richard Borzouye, for having "abandoned his professional responsibilities" to his client while in the process of withdrawing;
  
  
  • It is worth recalling at this point that Borzouye was not idly selected as counsel by Rakofsky: before he pulled it down, Rakofsky's website represented that he and Borzouye practiced together in some capacity within the Rakofsky Law Offices.
     
• Orders of default against nine defendants Rakofsky contends were served with earlier pleadings but who have not entered an appearance in the case.

The big news here is the proposed overhaul of the operative Complaint. The current First Amended Complaint is 82 pages long. It names 81 defendants and asserts claims for damages under four counts/causes of action: defamation, intentional infliction of emotional distress, intentional interference with contracts, and purported violation of New York's Civil Rights Law (relating to the "unauthorized use" of Rakofsky's image).

Possibly with the aid of artificial giant squid hormones, the proposed Second Amended Complaint has nearly quadrupled in size, running to 302 pages. The expansion is driven in part by a restructuring: while the prior complaints lumped all defendants together in each cause of action, now Rakofsky proposes to separate out his particular claims against discrete groups of related defendants. Thus, what was once a single cause of action for defamation is now 38 separate causes of action for defamation. Moreover, Rakofsky has added a similar collection of 33 separate causes of action on the new, if similar, theory of "injurious falsehood." Still in place are single counts seeking damages for infliction of distress, interference with contract, and the claimed Civil Rights Law violation, along with a new cause of action for intentional interference with "economic advantage."

Most notable, however, is the final, Seventy-Eighth [78! - Count 'em! - 78!] Cause of Action for "Prima Facie Tort." Here, Joseph Rakofsky alleges that each of the defendants has conspired with all of the others

... for the purpose of intimidating, injuring grievously and destroying the reputation, business and profession of plaintiffs (a practice hereinafter known as 'mobbing').

"'Mobbing'?" I hear you cry, "What is this 'mobbing' of which he speaks?" Gentle Reader, read on.

It is possible—not likely, mind you, but possible in this Most Possible of All Possible Worlds—that Joseph Rakofsky came up with this "mobbing" theory on his own. It is also possible—and rather more likely, in my untutored opinion—that the notion left its seeds while he was sleeping by way of this little Rakofsky-related thought experiment posted in early August on the blog of [non-defendant] Norm Pattis.  From whichever dank underplace of the mind it may have sprung, the act of "mobbing" seems to consist of little more than linking online in an implicitly supportive way to someone else's commentary elsewhere online. From the Second Amended Complaint:

1230.  Defendants have conspired with each other and have acted in combination and concert with each other by linking their Iinternet websites [sic] to the Internet websites of their co-conspirators, thereby magnifying the damage they intended to cause to plaintiffs.

1231.  Defendants linked their Internet websites to the Internet website of their co-conspirators to silence plaintiffs and intimidate them from, and retaliate against them for, resorting to the legal processed available to them under the law, thereby interfering with their legal and constitutional rights, doing so through the use of the Internet ( hereinafter referred to as 'cyber-bullying').

You caught that, right? "Mobbing" has become "cyber-bullying", and both of them consist of expressing to the World, via the Internet and/or a website thereon, one's, er, skepticism of the merits of Joseph Rakofsky's having sued one. 

There's more: some [unidentified sub set of the 95] defendants are alleged to have identified Rakofsky's publicly available Facebook contacts and to have contacted them "for the purpose of alerting them" to unfavorable remarks about Rakofsky online. Some unidentified others  "have attempted to rely upon the anonymity they believe the Internet has afforded them" to publish who-knows-what that has sufficiently offended the plaintiff that he considers it "despicable" or "obscene" or " illegal." And so on, and so on, to the tune of $25 Million in supposed damages on that cause of action alone. 

Those anonymous/pseudonymous defendants seem to be the real catalysts of the sudden metastatic giantism of Rakofsky's claims. He hates them and is driven to conniptions because he cannot seem to Get At Them. He is so thoroughly put out by that merry band of sophomoric zanies that he is prepared to advance, as if it were credible in what we so quaintly embrace as Reality, the notion that the known and named defendants —the ones with day jobs and good names of their own to protect—are responsible for it. Yes, friends! In Rakofskyworld, it seems, the likes of the Atlantic and the Washington Post and a Who's Who of reputable legal bloggers are encouraging basement-bound trolls to speculate publicly on random strangers' intimate relations with Equine Americans, fresh fruit, or members of the Nubility. An entirely compelling premise for a lawsuit, yes indeedy, that it is, eh? [For those playing along at home, the correct answer to that bit of hyperbolic japery is "no." Right?] 

Ah, well. Enough of this larking about. Herewith, some concluding links:

• Eric Turkewitz has uploaded the proposed Second Amended Complaint in two parts: Part 1, Part 2.
  
  
• Co-Defendant Mark Bennett has some pointed thoughts on the Rakofsky-Borzouye schism: ¡Que Pendejosidad!
   
• Non-defendant Ken at Popehat has posted thoughts on the "mobbing"' cause of action: The Tort of Internet Mobbing Is Perfect For Suing The Internet
   
• Non-defendant Goth-lawyer-blogger Siouxsie Law has expressed solidarity with the anonymous/pseudonyous masses, declaring: "I'm J-Dog"
   
• Co-defendant Antonin Pribetic reminds us that The Rakofsky Effect: It Actually Works!
  
  
• [Just added:] Defendant of Defendants Scott Greenfield waxes psychophilosophical, contemplating the pathos of a case in which the quest absorbs the man: Rakofsky's Dedicated Life

No doubt, there's more to come. There's always more: that's what "more" means.

~~~

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days. The Rakofsky Weekend Update will return next as developments warrant. .

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not intended to be comprehensive, so I recommend regular consultation of the ever-expanding Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet. 

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project; at this writing, that page has been updated through late July.

 ~~~

Illustrations: The battle with the giant squid, 20,000 Leagues Under the Sea, via Wikimedia Commons. Post title inspired by a Bärtische quip in "Homer's Night Out," a Season One episode of The Simpsons:

Weekend Update: Rakofsky v. Internet Week 13—Policies vs. Principle Edition [Contains Actual Insurance-Related Content]

 'Classes opened Sept. 9, [1885,] in the afternoon, with a short class,' wrote St. Thomas’ first rector.  'There being no books, no desks, very little was possible.'

This is the ninth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

The Rakofsky litigation has been largely quiescent these past two weeks in view of the Court's order staying proceedings until September 15 following the withdrawal of the plaintiff's former counsel, Richard Bourzoye. (See previous Week 11 Update.) A September 15 hearing date remains on calendar for the Court to consider the long-pending motion to admit Marc Randazza pro hac vice to appear on behalf of the Group of 35 defendants that includes this blog.

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  

Yesterday (August 4), Eric posted the unexpected news that two defendants—the University of St. Thomas, in Minneapolis, Minnesota, and Associate Director for Faculty and Public Services in the Schoenecker Law Library at the University of St. Thomas School of Law, Deborah Hackerson (a contributing editor at the Legal Skills Prof Blog)—have entered into a settlement with Joseph Rakofsky, and will be dismissed from the case in exchange for payment of $5,000.00.

Professor Hackerson and the University are the subject of Paragraph 186 in the Rakofsky Amended Complaint:

186.  On April 6, 2011, ST THOMAS 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 the 'Recent Law Grad's Incompetence Leads to Mistrial.' 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.

The blog post referred to appeared on the Legal Skills Prof Blog, but has since been expunged. Evidence of its existence, and of its first sentence, can still be found on some RSS feed sites, but a complete text seems not to have been cached or otherwise preserved. (If anyone actually possesses an archived copy, this blog would gladly republish it, for the historical record.)

The terms of the settlement are a matter of public record because someone—either the settling defendants' counsel or Joseph Rakofsky himself—filed it with the Court. That in itself is unusual, unless New York practice varies markedly from what we are familiar with in California. More commonly, a plaintiff would simply request a voluntary dismissal of his claims against the settling defendants, with no need or incentive to publicize the details of the compromise. It is doubly unusual that this particular settlement should be filed, because it provides by its own terms that it "shall not be filed in any court, except to the extent it becomes necessary to do so in order to enforce it after a breach." There has been nothing to indicate such a "breach" has occurred. 

Reaction and Commentary

The online reaction to the revelation of this settlement was swift and resolutely negative—against the settling defendants.  Co-defendant Scott Greenfield promptly posted:

Rakofsky graciously offered to settle the case with all of the defendants for the 'nominal' amount of $5,000.  One would have thought that all the defendants laughed.  Obviously, not all.

It was silly, an extortion attempt by a child.  And they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

At some point, someone at this school is going to be charged with teaching ethics.  How does a school so utterly lacking in principle do this?  It can't, but I guess no one thought of that when it approved of its insurance carrier buying its way out.

I'm absolutely disgusted that this is how anyone, but especially a law school and lawprof, would behave. Cowards? Gutless?  Morons?  Pray they write something mean about you, because you know they'll be happy to fork over five grand for nothing.

Co-defendant Mark Bennett joined in:

Hackerson is a librarian and a law prof; you might expect her to give a damn about the First Amendment. The law school is, well, a law school; you would devoutly wish that it gave a damn about the First Amendment, because it’s teaching lawyers who might some day be called on to defend the First Amendment. Because it’s teaching lawyers who might some day be called on to defend people in trouble, you would also wish that it was willing to fight for principle. The law school collects $37,000+ per year per student. $5,000 is peanuts. But that’s much higher than the value it puts on the First Amendment. By settling for more than it would ever have to expend if it fought the case (the small cost of joining almost seventy other defendants in fighting off a frivolous suit by a pro se litigant), the law school assigned a negative value to free expression.

Earlier today, Trial Warrior blogger [and co-defendant] Antonin Pribetic added:

[University namesake] St. Thomas Aquinas identified four cardinal virtues: prudence, temperance, justice, and fortitude.

Quaere: Does this settlement reflect any of these four cardinal virtues?

Was this a prudent settlement? No. Prudence demands the exercise of sound judgment based upon foresight. Settling a case when all other defendants choose to exercise their freedom of speech is imprudent.

Was this a temperate settlement? No. Temperance requires moderation in action, thought, or feeling; restraint.  Paying a nuisance fee to settle a defamation claim wholly devoid of merit and lacking jurisdiction is intemperate.

Was this settlement just? No. justice is moral rightness based upon ethics, rationality, law, natural law,  fairness, or equity. To settle a case for the sake of expediency is unjust.

Was this settlement fortitudinous?  No. It lacks what is depicted in the photo below.

As a defendant myself, I am no happier than my compatriots to learn that Joseph Rakofsky has reaped even $5,000.00 worth of crumbs from his deeply misguided, reprehensible pursuit of his pointless, insulting, and Constitutionally unsound claims. I would have wished, for most of the reasons expressed above, that UST and Prof. Hackerson had heeded the advice growled by George C. Scott in the opening speech of Patton:

I want you to remember: No bastard ever won a war by dying for his country. He won it by making the other poor dumb bastard die for his country.

But principle—and fighting on, either to prove an important point or to avoid even implicitly conceding it—most likely never entered in to the equation here because, as the release documents reveal, the settlement was made and funded by UST's liability insurance company, Travelers. In the ordinary course of things, it is more likely than not that the insurer had full control over the settlement decision and was under no obligation to consult with, or to obtain consent from, the insureds on whose behalf it settled.

Here is how things work.

A liability insurer makes two promises to its insured: to pay covered judgments on behalf of the insured (up to the policy limits), and to defend the insured against claims that may lead to covered judgments. Unless otherwise agreed, or unless certain sorts of conflicts arise, the general rule under most commercial liability policies is that the insurer's duty to defend potentially covered claims carries with it the unequivocal right to control that defense. That right of control is commonly written in to the policy explicitly. To the point here: the right to control the defense typically carries with it the right of the insurer to settle unilaterally for any reason it may choose. The relevant language, as it appears in the 2006 edition of the ISO commercial liability form, is blunt:

We will have the right and duty to defend the insured against any 'suit' seeking those damages [covered by the policy]. . . . We may, at our discretion, investigate any 'occurrence' and settle any claim or 'suit' that may result.

(Emphasis added.)

Some policies grant specific rights of control to the insured. Directors' and Officers' liability policies frequently require the insured to defend the case on its own nickel, with the insurer reimbursing the expense after the fact. Those policies grant the insured a fair degree of control over the decision to defend or to settle.

Malpractice insurance policies issued to health care professionals commonly require the insured's express written consent to any settlement.  In California, at least, that sort of consent clause is mandatory in medical malpractice policies, and it gives the insured doctor an absolute veto over any proposed settlement. Attorneys are not so fortunate: while many Errors & Omissions policies for attorneys include a requirement that the insured's consent be obtained before settlement, those same policies typically include a so-called "hammer clause," which shifts the financial risk to the attorney if the case goes badly after a refusal to give consent to settlement.

I do not know what sort of insurance UST and Prof. Hackerson actually have with Travelers that may be applicable to this case, but I suspect that it is not one of those policies that extends a right of control to the insured over settlement. I suspect, instead, that it more closely resembles the standard commercial liability policy quoted above. If that is the case, then the decision to settle may well have been made unilaterally by the insurance company, sans consultation or consent, based entirely on the cold equation that giving $5,000.00 to Joseph Rakofsky was faster and cheaper than spending that same amount, or more, or less, to defend the case and to stand up for principle.

And this is the sad truth: liability insurers are in the business of assuming the financial consequences of their insureds' liabilities. Liability insurers are not in the business of fighting for your principles. They do not sign up to fight for principle, and they certainly do not receive enough in premium to make "millions for defense, not one penny for tribute" a viable business plan.

This arrangement, in some ways, stinks to high heaven if you are concerned with litigation as a search for truth and a vindicator of higher things. Over nearly thirty years of practicing in and around insurance defense, I have lost track of the number of cases that were resolved on "economic grounds" when it was my own judgment, or my client's, that the case could and should be fought to the last breath, because the client was in some fundamental fashion "right" and because there was a reasonable likelihood that fighting it through to the end would work. But the insurers' position and practices are understandable: they are not charitable foundations, or activist groups, but businesses. They make a bargain with their insureds in which money is all that is at stake; and because it is the insurer's money, it is the insurer that gets to make the call on when and how and why that money will be spent. 

I loathe "nuisance settlements." They send a terrible message that filing a useless lawsuit is a quick and dirty way to convert your delusions to a little ready cash. I loathe this one in particular because (1) I am a co-defendant and this settlement, if only in a modest way, lends succour to my opponent, and (2) even if I were not a party to the case, lawsuits the like of this—lawsuits that are used as blunt instruments to cow or bully the exercise of defendants' legitimate rights—should not, in a perfect world, ever provide the remotest benefit to those who file them. But no, this ain't no perfect world.

Scott Greenfield and Mark Bennett are criminal defense attorneys, and to their immense credit have chosen to practice in a field in which fighting for principle—particularly the principle that even the "guilty" are entitled to a full and fair process before the State can act against them—is the entire point. Civil litigation, even when Constitutional principle becomes the subject of that litigation, is a hazier affair, far more prone to being compromised by purely mercenary concerns. 

Scott added an update to his original post, with his thoughts on the insurance aspects. I am pretty sure that I am one of the "some" he refers to at the start of this passage:

All of this makes me wonder why some would make the effort to 'explain' (what I would better characterize as 'excuse') this act of stupidity and cowardice.  Some innate human desire to be contrarian, perhaps?  Some desire to show how smart you are, a rather typical affect of lawyers?  No matter, as Occam's Razor teaches us that the simplest explanation that accounts for all known facts is usually the correct one.  There are always outlier arguments, which provide a convenient excuse.

If my assessment of St. Thomas School of Law is wrong, then I invite them to say that they disavow this settlement and despise that it made them appear to sacrifice principle to buy their way out of this completely frivolous lawsuit.

Judge me as you will. I thought I was "explaining" for the reason one would usually want to explain a thing: to provide a reasonably accurate description of the world as it is, whether "some" like it that way or not.  I obviously do not agree with Scott's analysis at every point, and I particularly question his idealistic but unrealistic assumption that UST and Prof. Hackerson had any opportunity to weigh in on the decision to settle. I do, however, largely agree with his last statement.

The UST School of Law and Professor Hackerson have no obligation to do anything but to go on about their lives with Joseph Rakofsky out of them. They do not "owe" anyone anything: not Scott, not me, and not even you, Gentle Reader. Obligation or no, it would be the principled thing for them to volunteer an explanation, if only to salvage their reputations within the legal community and to avoid the appearance—if an appearance is all that it is—of spineless appeasement.  There are more than a few blogs, including Professor Hackerson's own, where such a statement could be posted.

Meanwhile, the deal is done and we move on.

~~~

Update [1411 PDT]: At more or less the same moment as I posted this today, [non-defendant] Ken of the Popehat blog weighed in with more scorn for the settling academics: "The University of St. Thomas School of Law Teaches Values!"

~~~

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days. The Rakofsky Weekend Update will return next as developments warrant. In light of the continuing stay order, this feature will likely be on hiatus for at least another week or two, and possibly until the Court rules following the September 15 hearing.  Or not.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not intended to be comprehensive, so I recommend regular consultation of the ever-expanding Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet. 

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project; at this writing, that page has been updated through late July.

~~~

Photo: The buildings of St. Thomas Aquinas Seminary, ca. its founding in 1885, via St. Thomas Magazine, Fall 2009.  The linked article also provides the quotation at the top of this post.  The photo appears as well as the cover of the University of St. Thomas quasquicentennial calendar.

Weekend Update: Rakofsky v. Internet Week 11—As Seen on TV Edition [Updated]

This is the eighth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

There were no Decs&Excs Rakofsky updates for the past two weeks, as the case slipped in to something of an early summer lull. No more: at week's end, several new motions were filed by freshly-appearing defendants. In addition, the court has now scheduled a hearing date concerning the long-pending motion to admit Marc Randazza pro hac vice to appear on behalf of the Group of 35 defendants that includes this blog.

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  Yesterday
(July 21), Eric posted no less than three new Motions to Dismiss:

• Motion to Dismiss on behalf of the Washington Post, Post writer Keith Alexander and Post researcher Jennifer Jenkins.
  

The Washington Post's reporting is generally believed to have been the first coverage of the Dontrell Deaner mistrial, and most if not all of the subsequent commentary traces back to those reports.

• Motion to Dismiss of Georgia attorney Jeanne O'Halloran.  

The O'Halloran motion includes two previously unseen pieces of the record in the Deaner murder trial: the reporter's transcript of proceedings on
March 31 in which Joseph Rakofsky initially raised the issue of his being removed as counsel for the defendant, and the motion of investigator Adrian Bean that first raised the question of whether Bean had been asked to "trick" a potential witness.

• Motion to Dismiss of Washington City Paper and its writer, Rend Smith. The City Paper is a free journal that first reported on the Deaner mistrial on April 4, shortly following the Post's initial report.

With the appearance of the Post and the City Paper, and the prior filing on behalf of Reuters, the principal institutional defendant not yet heard from is the American Bar Association/ABA Journal.  There is no information circulating concerning whether the ABA has been served and when, if at all, its response is due to be filed.

All of the motions previously reported remain pending, without a decision by the Court.  This past week, the Court scheduled a hearing date in September on the motion to admit Marc Randazza as counsel in New York for the limited purpose of representing his clients as defendants in the Rakofsky case. 

[Update 7/23/11 0740 PDT]: The Court has issued an order granting the motion (discussed here) of Richard Borzouye to withdraw as counsel for the plaintiffs.  Eric Turkewitz has the full text of the order here. In order to permit Joseph Rakofsky time in which to retain new counsel for himself and, particularly, for his law firm (which as a corporation cannot appear in the case without an attorney), the Court has stayed all further proceedings until September 14.  The motion regarding admission of Marc Randazza remains scheduled for hearing on September 15.

Rakofsky Online

Rakofsky v. the Internet has continued to gobble up global mindshare in recent weeks, migrating from the Internet to your local cable or satellite television service in the form of a "bumper" on Cartoon Network's [adult swim]. That's it at the top of this post, in an embeddable version found via [bump worthy]. The misspelling of "mistrial" in the faux-Facebook item is a nice touch.

Another sighting of Rakofsky in the wild is reported by [defendant] Nathaniel Burney:

(Mr. Burney, it may be recalled, was not originally a party to the Rakofsky litigation, complained about it, and got his wish by being joined as an additional defendant in the Amended Complaint. He runs a thriving lightning rod distributorship on the side.)

[Defendant] Mark Bennett took the opportunity to review [what is in some circles speculated to be] Joseph Rakofsky's Craigslist Ad to Replace his attorney, and to offer helpful suggestions toward its revision.

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days. The Rakofsky Weekend Update will return as developments warrant. In light of the stay order described in the Update above, this feature will likely be on hiatus for at least a week or two, and possibly until the Court rules following the September 15 hearing. 

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not intended to be comprehensive, so I recommend regular consultation of the ever-expanding Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet. The Compendio achieved a milestone this week when Mr. Bennett announced:

To which I responded:

And, as if in answer to a blogger's prayers, by week's end the 101-post mark had been reached. Woof!

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project, although at this writing that page has not been updated since late June.

Profiles in Credibility

In the shiny, bold and brazen world of social media and social networks, LinkedIn—the self-styled "World's Largest Professional Network"—receives recommendations in plenty as the "It" spot for attorneys and other skilled laborers looking to connect, interact, gel, spark, and perhaps spontaneously combust in a dizzying explosion of opportunity.  To that end, LinkedIn's toolkit includes discussion groups—cleverly named "LinkedIn Groups"—through which like-minded or similarly inclined Linkedinovians can chat one another up, raise and resolve the burning questions of the day, and potentially (yes!) conjoin for mutual benefit.

It is hardly a bad idea in theory, this seeking out of others whose technical skills and specialized knowledge may meet your needs.  It is also not without its perils, especially for those involved in litigation.

Just today, I noticed a discussion thread in the LinkedIn "Insurance Coverage" Group that gave me pause.  An attorney in the Buffalo/Niagara region of New York has started a discussion under this title:

Need ins agent expert to testify at trial in NY Sup Ct Erie Co that standard for agent of direct writer is to obtain requested coverage in reasonable time or inform client of inability to do so.

What can we deduce from this?  It is reasonably clear that this attorney is involved in active litigation—either a dispute with an insurance company over the terms of a policy or, perhaps, a claim for professional negligence against an insurance producer for failure to obtain needed coverage—and is going to need the assistance of a qualified expert witness to address the existence and terms of certain legal duties, standards of practice, or standards of care that may or may not apply in the circumstances under New York law.  

That an attorney would need and want expert testimony in support of his or her client's side of such a case is not at all surprising.  Nor is it unreasonable on the face of it for an attorney to conclude that a few discrete inquiries among the networked professionals on LinkedIn might lead to a source of such expertise.  Discretion, however, is not much in evidence here, even if we disregard the unseemly spectacle of a dozen or so self-styled experts—each of whom may in truth be, for all I know, fully qualified to respond to the question at hand—weighing in with the social network equivalent of "Me! Me! Oh, please pick me!"

I see the potential for trouble, both for the inquiring attorney and for any responsive expert.

While a topical LinkedIn Group is not an entirely public forum, the barriers to entry to a Group are far from insurmountable.  When a lawyer announces openly in a LinkedIn Group a search for a consultant or expert to work on a pending case, it is reasonable to assume that that announcement can and will be seen by the opposing party or opposing counsel, or by a consultant or expert who may at some point, perhaps already, be working with opposing counsel on the same case.  To post this sort of question to LinkedIn is to tip your hand in at least a modest way.  How significant the revelation may be will vary according to the circumstances of the case, obviously, but it is hardly difficult to imagine a situation in which the knowledge that a party has not yet located a necessary witness would be knowledge of real value to "the other side."  When you beat the bushes in public you reveal something of your bush-beating technique, which is exactly the sort of revelation of tactical or strategic thinking—aka that cherished resource, "attorney work-product"—that most legal professionals are anxious to avoid.

A potentially more substantial problem stems from the way in which this particular inquiry has been phrased.  The attorney essentially says flat out that the object of the search is not an expert to consult or advise generally on a subject, i.e., "standards for agents of direct writers."  Rather, as phrased, the attorney announces a search for an expert who will commit in advance to stating a particular opinion, i.e., "the standard for agents of direct writers is [as stated by the attorney]."  The standard articulated by the attorney may, in truth, be the applicable standard in New York; the method by which the opinion has been solicited, however, potentially compromises the credibility of any expert who takes the stand to describe it.

Expert witnesses are constantly accused, in depositions and at trial, of being mere "hired guns" whose opinions should be disregarded because they are "bought and paid for."  Expert witnesses are always under scrutiny by opposing counsel concerning the manner in which they came to be selected and hired.  Framing the search for an expert as has been done in this LinkedIn discussion makes the "hired gun" argument that much easier for opposing counsel to advance, by providing what may be perceived as direct evidence that whichever expert ultimately ventures the relevant opinion should perhaps not to be trusted by the trier of fact.  

With an expert witness, credibility is everything.  An expert's opinion testimony is only as persuasive and only as valuable the expert's explanation of the reasons for holding that opinion.  A jury or a judge needs to be persuaded that the expert's opinions are reliable because the expert genuinely holds those opinions and has come to them by a reasoned and articulable process.  The entire structure of expert witness credibility collapses when it can be demonstrated, or at least made to appear, that the expert was retained to parrot opinions dictated by counsel, to be as it were a mere "mouthpiece's mouthpiece."  

We can leave to another day the ethical questions suggested by an expert who leaps too happily to answering an inquiry framed as this one has been.  A reputation for "saying what the attorney wants to hear" may be advantageous in the short term, but it does nothing to enhance the reputation of a witness for true expertise.  Moreover, a willingness to promise to provide a specific opinion even before learning the particular facts of the case to which that opinion applies shows a cavalier attitude at best, and may suggest a mercenary willingness to Say Anything for the sake of a fee.  

The value of confidentiality in selection and consultation with experts is reflected in the practice in most jurisdictions of not permitting inquiry into the identities or qualifications of the parties' respective expert witnesses until the latest stages of the litigation, immediately prior to trial.  In an adversary system, the Other must always be assumed to be watching, waiting to spot and to seize any advantage; information concerning the opponent's selection of an expert may provide that advantage.  Hunting for expert assistance in litigation is therefore typically best done under as much cover as possible.  Shouting an invitation to the hawkers of expertise in the electronic bazaar that is LinkedIn might work out for the best in any given case, but it seems a risky and unnecessarily exposed way of going about an important and already delicate task.

~~~

Photo:  Sheet music cover of "They Didn't Believe Me", from The Girl from Utah (1914), via Wikimedia Commons.

Weekend Update: Rakofsky v. Internet Week 8 ―4th of July "The Fireworks Factory is Hiring!" Edition

This is the seventh in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto.  All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

In the early going, it was a quiet week in Rakofskyworld, so quiet that by Thursday morning it had begun to seem that there might be no cause to produce this edition of the Update.  A lull in anticipation of the long Independence Day weekend, perhaps?  No: the calm before the latest burst of sound, fury and fireworks.

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  The week began with Eric uploading the partial opposition, on behalf of the Group of 35 defendants he represents, to the motion of Rakofsky's current counsel, Richard Bourzoye, to withdraw from the case.  The partial opposition only addresses concerns over leaving Joseph Rakofsky's law firm, a professional corporation, unrepresented.  While Rakofsky, or any other litigant, is permitted to represent himself as an individual, business entities can only appear and participate in litigation via an attorney.  There is concern that, if Bourzoye withdraws without new counsel stepping in on behalf of the professional corporation, neither the defendants nor the Court will have any lawful way of interacting with that plaintiff in moving the case forward.

On Thursday,. June 30, Eric updated yet again his post concerning the initial procedural motions―seeking admission of Marc Randazza pro hac vice and requesting a single response date be set for the filings of all defendants―filed on behalf of the Group of 35.  It seems that Rakofsky has attempted something of a "bait and switch," swapping out an earlier, objectionable set of papers over his own signature in favor of an altered set over the signature of his counsel, Bourzouye.   The procedural and evidentiary problems posed by that move compelled Turkewitz and Randazza to file sur-replies, bringing the issue to the Court's attention and attempting to set matters straight.  The written submissions relating to those motions are now complete, but a ruling on the substance of the motions has yet to issue. Similarly, the motion of Bourzouye to withdraw as counsel and the previously reported motions of other defendants to dismiss on jurisdictional and substantive grounds, remain pending.

Rakofsky Online

In last week's Update, I discussed [defendant] attorney Mark Doudna, who found himself dragged in to the Rakofsky litigation based upon a blog post that was written and posted in his name, but was in fact authored without his input by an outside marketing consultant.  "[A] parable of legal services marketing," I called it, "offering lessons galore for those who will learn them." This week, writing at Simple Justice, [defendant] Scott Greenfield was prepared to look more deeply at those lessons in his post, "Doudna Takes a Magic Bullet."

Earlier today, through the efforts of Angel Martin, the term "Rakofsky Effect" found its way in to the Urban Dictionary. 

Perhaps the most unexpected online development of the week was revealed by [non-defendant] New York attorney Joe DePaola on Twitter when he pointed to the appearance yesterday of this most intriguing legal job listing, on Craigslist:

Attorney of Record in NY (Trial Lawyer...MUST READ BELOW)

In your reply, please acknowledge the points listed below. ($200 a month plus $150 per Court Appearance.)

1) This is a Defamation case that was filed only a couple of months ago; it is brand new.  If the case survives the motions to dismiss, I assume it will be 2 or 3 years before it is over. There are many, many defendants and once they learn who the lawyer is who I will hire as the Attorney of Record, they will almost certainly engage in character assassination of that person and attempt to ruin that lawyer's reputation on the Internet.  I do not know for a fact that this will happen, but I believe that it is a possibility.

2) The lawyer should be EXTREMELY aggressive in the Court room. It is helpful if you have experience in Defamation. Obviously, trial lawyers who intimately know the CPLR will be the strongest candidates.

3) Please, no resumes.  Just briefly tell me about your experience.

4) While I will be responsible for most of the drafting, I will have legal and procedural questions that I could need you to answer.  You will also need to proof read our documents.

5) You must become an expert in my case.  You must know all of the defendants, all of their arguments, etc.  Thank you.

The listing does not identify the potential client by name, so it is not certain that this was posted by Joseph Rakofsky or has anything to do with his case. The circumstantial similarities and the poster's attitude toward the case and his opposing litigants all tend to suggest, strongly, that if the listing is serious―this is the Internet, reader, so the possibility that this is merely commentary, metacommentary, or spoofery must always be borne in mind―it originates in Rakofsky's effort to replace Bourzoye at the counsel table.  So to New York area practitioners we say:

If your dream position for the next 2 to 3 years is as an aggressive, expert proofreader and civil procedure tutor, if you are prepared to place your reputation on the line, and if you are prepared to do it all for $200 per month, Destiny is calling. 

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

[Defendant] Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not necessarily comprehensive.  I recommend regular consultation of the Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet.

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project.

Weekend Update: Rakofsky v. Internet Week 7

This is the sixth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto.  All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

The frightful momentum of the avalanche of motion and pleading filings grew apace this past week, as regularly monitored and ably reported by [my co-defendant and local counsel] Eric Turkewitz:

Rakofsky has filed an opposition memorandum to the pending motions by the collectively-appearing Group of 35 [formerly 33] defendants, seeking admission of Marc Randazza pro hac vice and requesting a single response date be set for the filings of all defendants.  Opposition to a pro hac application is highly unusual, as such motions are generally granted out of hand in support of a general policy of allowing litigants to be represented by counsel of their choice.  Joseph Rakofsky's opposition memorandum―which he appears to have authored himself―urges that Mr. Randazza's admission should be denied because Randazza has spoken to Rakofsky in rude and colorful terms in a single telephone conversation.

On Monday, June 20, the Group of 35 filed their reply papers, including responsive affidavits from Turkewitz and Randazza.  This likely concludes the written submissions concerning this motion, which remains before the Court for decision at this writing.

Also on Monday, it was confirmed that Joseph Rakofsky's own attorney, Richard Borzouye, has applied to the Court for permission to withdraw from further representation.  If that application is granted, Rakofsky could continue to appear on his own behalf, but there is substantial doubt whether he can represent his law firm, which is organized as a professional corporation, without himself being admitted pro hac vice for that purpose.  (Generally, corporations and similar business entities are not permitted to appear pro se/in propria persona, and must be represented by an attorney.  Joseph Rakofsky is admitted to practice law in New Jersey, but not in New York, so his appearance on behalf of the professional corporation would require the Court's permission.)  Again, there has been no ruling yet on the Borzouye motion to withdraw.

On Thursday, June 23, came word that the first of the first appearance by one of the large media related defendants, as Reuters filed a motion to dismiss.  That motion, filed by attorney Mark Weissman of Herzfeld & Rubin, includes a memorandum of law addressing in detail many of the substantive issues and defenses that will need to be resolved, to the extent the case ever proceeds beyond the pleading stage.  A good primer on New York defamation law, particularly as it relates to the right and privileges of the press.  It has been well reviewed:

Orange County, California, criminal defense lawyer Michael Doudna is named as a defendant on the basis of a blog post [no longer available online]. On Friday, June 24, his counsel (Thomas Catalano of Lester Schwab Katz & Dwyer) filed a Motion to Dismiss and for imposition of sanctions on Rakofsky.  Doudna's motion focuses on the question of personal jurisdiction, i.e., whether there is a basis on which the New York court can exercise jurisdiction over a defendant who has never entered the state.  Sanctions are sought on the ground that Rakofsky's suit is frivolous and filed in bad faith.

As Eric Turkewitz notes in his report, the most intriguing aspect of the Doudna motion is the revelation that Mr. Doudna has been sued for a blog post he did not write, post, or even personally approve.  The Doudna firm hired a marketing consultant, Kenney & Associates ("KA"), in March 2011, and KA created, and was apparently solely responsible for maintaining, a blog in Doudna's name.  Posts to the blog seem to have consisted of summaries and pointers to other sites' material on criminal law issues.  One such item that was linked and described was the ABA Journal's piece on Rakofsky, which in turn relied on the Washington Post's original reporting.  Mr. Doudna states in his supporting affidavit that he did not write, post, or even read that report at the time.  In fact, dissatisfied that the blog was not producing immediate increases in business, he terminated the relationship with KA; KA itself went out of business almost immediately thereafter.  And a month later: voila! Mr. Doudna is a defendant in the notorious case of Rakofsky v. Internet.  It's like a parable of legal services marketing, offering lessons galore for those who will learn them.

Rakofsky Online

While commentary on Rakofsky is still largely the province of legal blogs, the case continues to percolate through hidden and permeable strata of online consciousness, erupting like a sand boil where it is least expected, such as for instance on Moxie Bird―a site promising "News, Sex, Style, Technology, and Fun for Parents with Moxie!"―where staff writer Lexa―

Lexa obsesses about her hair more than you want to know. She hates tardiness, people who don't send thank you notes and pigeons.

―offered up some none too trenchant observations in a post titled "Young Lawyer Sues Internet": 

The internet mocking got to be a bit embarrassing for Rakofsky, so he did what any reasonable person would do: he filed cases of defamation against 81 different parties.   Anyone who hurt his feelings was served.   Because the way to react to public humiliation and a bruised ego is to call more attention to it.  Good plan there, bucko.

The Moxie Bird piece looks to have been triggered by last week's rather more insightful Atlantic Wire item.  

Cheering, hooting and jeering from the sidelines, Ken at Popehat declared: "Rakofsky Totally Has The Internet Just Where He Wants It Now." That post, typical of the genre, focuses largely on the perceived weaknesses of Rakofsky's own position, but Ken is not above casting a morsel of jaundiced attention toward blawger defendants as well:

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!”

Ken likely had in mind posts such as [defendant] Jamison Koehler's "Rakofsky v. The Washington Post: Being on the Other End of the Attorney-Client Relationship."  In fact, we know he had that post in mind, because he and [defendant] Scott Greenfield put in appearances in the comments to Koehler's post to say so.  

If recent history is any guide, some new and fascinating Rakofsky post will surface not long after this one is published.  I will be sure to report on it in my next installment.  The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

[Defendant] Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not necessarily comprehensive.  The CMLP Threat Page is not currently monitoring or compiling online discussion about the case (as opposed to online access to filngs in the case) so, as I have been doing each week, I recommend regular consultation of the Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet.

Illustration: Photograph of the debris field including wrecked train cars following the Wellington Avalanche of March, 1910, via Wikimedia Commons.

Can I Get A Witness? —Being a Consideration of Certain Evidentiary and Procedural Difficulties in a Narrative of Mr. Ambrose Bierce

On my personal/cultural blog last week, I wrote about The Difficulty of Crossing a Field, an opera/theater piece with music, based upon the very short story of the same name by Ambrose Bierce.  The story is worth a look for lawyers, or for anyone else with an interest in the notion that legal proceedings may operate as a method for seeking out Truth.  

Because "Difficulty" is only 752 words long, and in the public domain, I will reproduce it in its entirety in the body of this post, glossing as we go.

The story was first published more than two decades after the end of the Civil War, in 1888 in San Francisco, but it takes place in the South some seven years before that war began.  Bierce sets his scene in his opening paragraph with an aura of strict precision:

One morning in July, 1854, a planter named Williamson, living six miles from Selma, Alabama, was sitting with his wife and a child on the veranda of his dwelling.  Immediately in front of the house was a lawn, perhaps fifty yards in extent between the house and public road, or, as it was called, the 'pike.'  Beyond this road lay a close-cropped pasture of some ten acres, level and without a tree, rock, or any natural or artificial object on its surface.  At the time there was not even a domestic animal in the field.  In another field, beyond the pasture, a dozen slaves were at work under an overseer.

As with a magician, Bierce is interested in persuading the reader that he has nothing up his sleeve, that the stage for the drama to follow is clear and clean, unequipped with trapdoors or false bottoms or concealed Aces or Jokers or rabbits.

Throwing away the stump of a cigar, the planter rose, saying: 'I forgot to tell Andrew about those horses.'  Andrew was the overseer.

Williamson strolled leisurely down the gravel walk, plucking a flower as he went, passed across the road and into the pasture, pausing a moment as he closed the gate leading into it, to greet a passing neighbor, Armour Wren, who lived on an adjoining plantation.  Mr. Wren was in an open carriage with his son James, a lad of thirteen.  When he had driven some two hundred yards from the point of meeting, Mr. Wren said to his son: 'I forgot to tell Mr. Williamson about those horses.'

Simple, mundane, nothing unusual here.  This mysterious talk of horses will even be explained in the paragraph that follows.  It is a different horse, however, that provides the distraction or misdirection during which Bierce the magician springs the trick:

Mr. Wren had sold to Mr. Williamson some horses, which were to have been sent for that day, but for some reason not now remembered it would be inconvenient to deliver them until the morrow.  The coachman was directed to drive back, and as the vehicle turned Williamson was seen by all three, walking leisurely across the pasture.  At that moment one of the coach horses stumbled and came near falling.  It had no more than fairly recovered itself when James Wren cried: 'Why, father, what has become of Mr. Williamson?'

It is not the purpose of this narrative to answer that question.

As promised, the narrative provides no answer.  Instead, Bierce deepens the mystery by describing the investigation into it.  The Law needs must become involved: a landowner has vanished, and the status of his property must be resolved.  An investigation and hearing are undertaken, and it is the next passage that gives the story a place on a legal blog.  From the record of the investigation, Bierce shares the transcribed testimony of Williamson's neighbor, Mr. Armour Wren, which I here reproduce with annotations:

Mr. Wren’s strange account of the matter, given under oath in the course of legal proceedings relating to the Williamson estate, here follows:

'My son’s exclamation caused me to look toward the spot where I had seen the deceased [sic] an instant before, but he was not there, nor was he anywhere visible.¹  I cannot say that at the moment I was greatly startled, or realized the gravity of the occurrence, though I thought it singular.²  My son, however, was greatly astonished and kept repeating his question in different forms until we arrived at the gate.³  My black boy Sam was similarly affected, even in a greater degree, but I reckon more by my son’s manner than by anything he had himself observed.⁴ [This sentence in the testimony was stricken out.]⁵  As we got out of the carriage at the gate of the field, and while Sam was hanging [sic] the team to the fence, Mrs. Williamson, with her child in her arms and followed by several servants, came running down the walk in great excitement, crying: ‘He is gone, he is gone!  O God! what an awful thing!’ and many other such exclamations, which I do not distinctly recollect.⁶  I got from them the impression that they related to something more — than the mere disappearance of her husband, even if that had occurred before her eyes.⁷  Her manner was wild, but not more so, I think, than was natural under the circumstances.  I have no reason to think she had at that time lost her mind.⁸  I have never since seen nor heard of Mr. Williamson.⁹'

¹ The "[sic]" is Bierce's.  Mr. Wren is jumping to a conclusion the moment he begins to speak, testifying to a matter of which he has no personal knowledge.  The entire purpose of the proceeding is to determine whether, in fact, Mr. Williamson is "deceased" or whether he is . . . whatever or wherever else he may be, still living.  Mr. Wren does not know the answer to that question, and he would surely admit as much if you asked him. Although he knows that he does not know, he will give you an answer anyway. That people, in general, do this all the time makes Wren's testimony no less objectionable.  This is pure conclusion and speculation and should be stricken and disregarded by the trier of fact. 

²  The incident is "singular," without being either startling or of seeming importance?  This reveals nothing, other than a range of reactions Mr. Wren did not have.  This is neither probative nor particularly material testimony, other than as it may reflect the present, confused state of mind of the witness.

³  The description of his son's reaction as "astonished" likely gets by as a personal impression rather than an expression of expert opinion.  There is a relevancy objection just waiting to be made here, however.

⁴  See note 3.  The comment on the cause of Sam's consternation is speculative.

⁵  This redaction compounds the mystery.  The tribunal (Bierce actually) elects not to share this sentence, without stating a reason.  Was Wren commenting further on his son's reaction?  Adding some remark, likely dismissive or disparaging, concerning his [sic] "black boy Sam"? Providing the true key to the case?  

⁶  Wren turns his attention to the reaction of another possible eyewitness, Mrs. Williamson.  As implied here, and as confirmed in the following paragraph, the vanishing of her husband was more of a psychic blow to Mrs. Williamson than her wits could bear, and it has proven unavailing to seek her own testimony to what she observed.  Wren, to his credit, testifies here only to what he actually recalls of Mrs. Williamson's expostulations.

⁷  Abandoning direct observation and personal knowledge, Wren launches himself again on a freshet of speculation.  He does not know what Mrs. Williamson actually saw, if anything, and he does not know what her thoughts or motivations might be, yet he hints darkly that "something more" is afoot than a "mere disappearance."

⁸  Again, an improper lay opinion concerning the psychiatric condition of Mrs. Williamson.  Move to strike.

⁹  This may pass without objection.

Wren's testimony being concluded, Bierce ushers us rapidly from the courtroom, casually dropping a handful of additional mysteries en route to the egress.

This testimony, as might have been expected, was corroborated in almost every particular by the only other eye-witness (if that is a proper term) — the lad James.  Mrs. Williamson had lost her reason and the servants were, of course, not competent to testify.  The boy James Wren had declared at first that he saw the disappearance, but there is nothing of this in his testimony given in court.  None of the field hands working in the field to which Williamson was going had seen him at all, and the most rigorous search of the entire plantation and adjoining country failed to supply a clew.  The most monstrous and grotesque fictions, originating with the blacks, were current in that part of the State for many years, and probably are to this day; but what has been here related is all that is certainly known of the matter.  The courts decided that Williamson was dead, and his estate was distributed according to law.

(Italics original; boldface added.)

The already spotty evidentiary record is smudged to the point of uselessness: Young James Wren alters his prior testimony—on his own initiative or at the instigation of others—and now reveals that all he saw was nothing at all.  Mrs. Williamson cannot say and is not asked what "something more" may have triggered her "wild" (put proportionate?) response to whatever it was that she saw.  The slave/servant Sam may have seen more than anyone, but he is categorically disqualified from any consideration.  It is implied—by the phrasing "none . . . had seen him"—that the slaves/field hands in the adjoining parcel were asked whether they were witnesses, but unanimously denied it. What, then, may be the source of the "monstrous and grotesque" version of events—dismissed as "fictions," for no stated reason—that seemingly originates with those same field hands?

When all's said, very little has been said, and the court's determination that Mr. Williamson is, as characterized by Mr. Wren, "deceased" carries an air less of reasoned decision than of pragmatic necessity.  What else can the court say that will be dispositive, in practical terms?  How else can a deeply troubling incident be steered toward being forgotten?  The established order declares "victory," signs off on the judgment, and sends the spectators home.  There's nothing more to see here.

~~~

Photo:  Ambrose Bierce (1842 - 1913[?]), via Wikimedia Commons.