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.
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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!"
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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.
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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.
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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.
Since my post and yours appeared, there have been others, as well as a number of comments, from lawyers who do, or did, insurance work. They have authoritatively agreed, some with you and some with me, thereby conclusively proving that we are both incontrovertibly right. Or not.
I don't begrudge your expression of your sincere belief that the carrier likely settled without the defendant's consent or knowledge, though it's not my belief. What I have trouble understanding was the need to persist, after having expressed your view "provide a reasonably accurate description" of what happened.
There was an old internet cartoon where a wife asks her husband why he isn't coming to bed, and he responds that he's on the computer because there's someone wrong on the internet. I persisted in my position because I believe that settling for nuisance value with someone like Rakofsky in an action like this is a bad and dangerous thing that must be discouraged for the good of all.
Why you persisted, in this situation and under the circumstances here, isn't clear to me. Maybe you just couldn't sleep?
Posted by: shg | August 06, 2011 at 08:02 AM
shg,
It is comforting to know that we have established our mutual incontrovertible rightness, although I have not understood this discussion to be about who was right. But then, I haven't seen myself particularly as "persisting" on this subject, either: 2 or 3 remarks on Twitter and one blog post seems not all that persistent to me.
I have absolutely no idea what actually happened back in June when agreement on this settlement was reached. I may be mistaken, but I do not think you have any more firsthand knowledge than I do. As I apparently have not made sufficiently clear, I have no particular stake in which of the possible scenarios actually played out. It may have been driven by the insurer entirely; it may have been insisted upon by the University in a moment of weakness; it may have happened in any of a dozen ways.
If there is any point to be made, it is that because none of us know what actually happened, for any of us to be grasping at or insisting upon the particular hypothetical explanation that either most condemns or most ennobles the motives of the settling defendants is little more than an exercise in confirmation bias.
As I say, nobody who was not actually a party to it knows what happened or why in this settlement. Down the road, in the end, as a matter of the big picture — pick your cliché — it hardly matters. It is a stupid nuisance settlement, but not really any different than any of the hundreds or thousands of nuisance settlements, in all kinds of cases, that are entered into in this country in any given week. I have said it in my post: I have no love at all for nuisance settlements, and I wish they did not happen in any case, least of all in this one. Like many another wish, I'm not holding my breath in anticipation of it being granted.
I do not foresee this settlement, even if it is not the last, as likely to have any substantial, practical impact on the long-term trajectory of the Rakofsky litigation, which is as meritless today as it has always been. The vindication of all defendants, on the merits, cannot come soon enough for my taste.
With that, my persistence is at an end.
Posted by: George Wallace | August 06, 2011 at 10:47 AM