Declarations and Exclusions

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.

Weekend Update: Rakofsky v. Internet Week 6

This is the fifth 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

As reported by [my co-defendant and local counsel] Eric Turkewitz, two additional individual blogger-defendants filed Motions to Dismiss.  The newest motions are on behalf of Mirriam Seddiq and Jamison Koehler, and have been filed by Albany-based attorney David Brickman, who first appeared last week on behalf of defendant Max Kennerly.

Also making an initial appearance: Nevada attorney-blogger Mace Yampolsky.  As again reported by Mr. Turkewitz, Mr. Yampolsky and his counsel, John H. Teschner, have chosen to answer the Rakofsky Amended Complaint―denying liability and raising appropriate legal and factual defenses rather―than engaging in motion practice at this stage.

No other filings were reported this week.  The large institutional defendants, such as the Washington Post and the American Bar Association still have yet to appear. 

Rakofsky Online

Rakofsky continued to expand its presence to new and high profile regions.

On Tuesday, The Atlantic Wire posted a story by Adam Martin: "Meet the Lawyer Who Sued the Internet."  In addition to bringing the case to the attention of a wider general readership, the Atlantic item will likely be remembered for this quote from [defendant] Scott Greenfield:

We’re taking a firm stance, and it needs to be understood that even though we’re just a bunch of dopey bloggers, we’re not inclined to be pushed around by anybody.

(Emphasis added.)

On Wednesday, the Citizen Media Law Project launched its Threat Page devoted to monitoring the case.  Among other resources, the CMLP page includes links to all of the blogs whose posts are claimed by Joseph Rakofsky to have done him wrong, and a compilation of direct links to the filings in the case.

On Thursday, CMLP announced that its Threat Page had gone live via a blog post by John Sharkey: "The SLAPP-Happy Story of Rakofsky v. Internet."  That post looks to draw a larger policy lesson on the need for protection against the use of litigation as a tool to silence one's perceived critics and concludes with this:

So, yeah: the defendants aren't rolling over (note to self: law bloggers tend to be lawyers; don't sue them lightly), and unless Rakofsky backs off, we're in for some fireworks. But it's not just fun and games -- the lesson is the need for more serious anti-SLAPP statutes.

The link at the end of that paragraph goes to a pre-Rakosfky piece on possible national anti-SLAPP law by "Rakofsky 33" counsel, Marc Randazza.

A Georgia Lawyer and I had a bit of a Rakofsky-related difference on Twitter.  Mark Zamora [not a defendant] first wrote:

To which I replied:

To which he responded

and pointed to this post: "Friday's Distraction: Rakofsky vs. the Internet."  

Mr. Zamora's post, although published on a Friday, is a bit Monday Morning Quarterback-y for my personal taste―and a bit presumptious, too, to the extent it is premised on the notion that a lot of fairly obvious litigation steps are not being taken, or will not be taken at an appropriate juncture―but, no, that post is not "silly."  The original tweet, however, can still be fairly characterized that way.  As my rejoinder was meant to suggest, the idea that some prominent "media outlet" is going to find the Rakofsky litigation so all-fired important that it launches a Pulitzer-ready investigative series in which it inflicts upon its readers publishes "the entire transcript" of the U.S. v. Deaner murder trial is just not persuasive.  As always on the Internet, other readers are welcome to hold other opinions, but that is still mine.  [Thus endeth the personal interjection in what would usually be a more objective report.]

The Rakofsky Weekend Update will return to Decs&Excs next week, assuming its return is warranted by developments and public demand.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Rakofsky 33," 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: "Thomas the Slav with his army assails Constantinople in spring, 822" via Wikimedia Commons.

Pull Up to the Bumper

With analysis worthy of a zen master, or perhaps worthy of Jedi master Yoda, a divided panel of California's Sixth District Court of Appeal has posited essentially this:

You cannot "assume the risk" of participating in a dangerous activity if you first assume that the risk is an illusion.

The particular risk under consideration?  Roll up, friends!  It is none other than the risk of injury to its riders posed by the humble bumper car.  More specifically, it is the risk of being injured when bumped in a bumper car.   

The appellate opinions [PDF] in the case of Nalwa v. Cedar Fair (June 10, 2011) run to 58 pages: a 20-page opinion from the 2-judge majority, and a 38-page dissent finding fault with every one of the majority's holdings.  Those with a genuine interest in these things are advised to Read The Whole Thing, and reflect upon it in solitude.  The relative brevity of a blog post does not permit the fine-grained analysis this opinion deserves, but the surfaces we can skim here are interesting enough.

The facts of the case are largely undisputed.  In July, 2005, Dr. Smriti Malwa took her young children to the Great America theme park in Santa Clara, California.  There, they chose to ride the "Rue le Dodge" bumper cars.  Dr. Malwa rode as passenger in a car operated by her 10-year old son.  

During the ride, [her] bumper car was hit head-on and then immediately hit from behind.  Feeling 'pushed around,' and needing to 'brace' herself, [she] put her hand on the dash and fractured her wrist.

Litigation, rather than merriment, ensued.  

In 2008, the trial court granted summary judgment in favor of the park operator, Cedar Fair, reasoning that

the doctrine of primary assumption of risk barred recovery . . . because [the] injuries arose from bumping, a risk inherent in the activity of riding bumper cars.  Further, the court stated that, 'Defendant did not have a duty to reduce risks that are inherent to bumper car riding.'

On appeal―this week, nearly six years post-accident―the majority of the three-judge panel disagreed, reversing the judgment and returning the case to the lower court for further proceedings and possible trial.  

Let's parse this through, shall we?

California's current doctrine of "primary assumption of risk" originated, and has been applied predominately, in cases involving sports injuries.  In simplest terms, when a player/participant is injured in the usual course of events, either by another player or by physical conditions inherent in the sport, no legal liability will arise.  Liability is imposed only when some act or omission of the defendant has made the sport more dangerous than it ordinarily would be.  

As the Malwa majority opinion notes, this version of "assumption of risk"―which was "reinvented" by a "more conservative" California Supreme Court in the 1992 case of Knight v. Jewett―is of far more restricted application than was the traditional, common law version of the doctrine―which "[t]he pre-1986 liberal California Supreme Court had narrowed . . . to the 'point of virtual extinction.'"

As against Dr. Malwa, Cedar Fair argued that it had done nothing to make bumper car bumping any more risky than expected, and that the "primary assumption of risk" doctrine should be construed to apply beyond the context of sports.  In short, Cedar Fair suggested a re-broadening of the doctrine so that injury resulting from the recognized risk inherent in most any inherently-risky activity should not give rise to liability for damages.  

While the dissenting justice was prepared to move the law in that direction, the majority was having none of it.  In large part the majority was convinced that doctrines appropriate to a sporting competion are not relevant to amusement parks specifically because amusement parks are elaborately regulated enterprises.  In particular, although there is no suggestion that Cedar Fair's bumper cars were out of compliance with any applicable regulation, the fact of regulation in itself makes "primary assumption of the risk" in applicable. 

Amusement parks, the majority opines, are not offering actual risk to their patrons.  They are offering a mere simulacrum: the experience of quasi-risk in the absence of the real thing.  

The very reason we go on amusement park rides is because we 'seek the illusion of danger while being assured of [a ride‘s] actual safety.  The rider expects to be surprised and perhaps even frightened, but not hurt.'

This line of reasoning springs to life in a remarkable discussion in a footnote early in the opinion, which serves to advance the majority's argument while demonstrating as well that "they just don't write 'em like they used to": 

[Cedar Fair] relies on several out of state authorities which purportedly barred recovery against amusement parks because injuries sustained as a result of risks inherent in the ride.   [Cedar Fair] fails to explain how these cases are persuasive or even relevant under a post-Knight analysis.   We do note that the most auspicious Judge Cardozo, in Murphy v. Steeplechase Amusement Co. (N.Y. 1929) . . . , a case where the plaintiff broke a kneecap on an amusement park ride called the flopper, held that 'Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary . . . .' Judge Cardozo suggested that 'The antics of the clown are not the paces of the cloistered cleric.   The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility.   The plaintiff was not seeking a retreat for meditation. . . . The timorous may stay at home.'  While we certainly wouldn‘t presume to question Judge Cardozo‘s poetic alliteration [sic], his reasoning does not apply here.   First of all, Cardozo was reviewing a case after a jury verdict, not on motion for summary judgment. Second, Cardozo‘s discussion focuses on plaintiff‘s knowing acceptance of the risk, not on the absence of duty, as the doctrine is now crafted in California.  Finally, we cannot know, as the case does not reveal, what, if any, regulations New York had at the time regarding amusement park rides.   Judge Cardozo‘s opinion makes no mention of any such protective legislation or regulations.  Respondent‘s cases can be similarly distinguished.   Our playing field is quite different.   While amusement parks in 21st century California are still not retreats for meditation for the timid, riders here and now do get assurances of safety from a stringent regulatory scheme. 

Pause, and reflect on the unspoken pseudo-syllogism here.

• Amusement parks are regulated in the interest of safety, and customers believe therefore that they are safe.
• This amusement park did not violate any applicable provision of the "stringent regulatory scheme," and the fact that the risk of injury is modest but not zero was readily apparent to a reasonable adult.
• The modest risk of injury must therefore be borne by the amusement park, not by the customer who had the option to seek entertainment elsewhere.

It is not hard to tell by the tone of this post that I consider this case wrongly decided: the former, broader version of the defense of "assumption of the risk" is past due for resurrection in California, and this seems as good a case as any in which to do it.  Perhaps especially in a "stringently regulated" industry, the reality that Life is Risk (within reasonable limits) should not be denied.  The unfortunate can befall any of us any day, through no fault of any one else, and fault is the only reasonable basis for a schema of injury compensation. The facing of these facts would be refreshing.  Perhaps this is the case that will provide the California Supreme Court opportunity to revisit these issues and assumptions?   

~~~

Related: Walter Olson at Overlawyered is the latest to report that Butlin's, the UK operator of holiday resorts, has resorted to banning bumping on its bumper cars to counter potential liabilities.  The ban is particularly ironic given that company founder Sir Billy Butlin was the first to introduce the bumper car to England.

~~~

Photo: "View of the dodgems as a dodgem cars streak past.  Cambridge Midsummer Fair 2005." Andrew Dunn, photographer; used under Creative Commons license, via Wikimedia Commons.

Weekend Update: Rakofsky v. Internet Week 5

This is the fourth in the serially continuous and seriously continuing 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 divers 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

Last week, I noted the initial procedural filings on behalf of the Group of 33 defendants, principally bloggers, under the joint representation of Messrs. Marc Randazza and Eric Turkewitz.  If I am construing the information available online correctly, those applications are set for hearing on June 20.

[Update/Correction, 11 Jun 2011: I am reliably informed that I have not correctly construed procedures in the Supreme Court for the County of New York, and that the June 20 date is not in fact a date on which a hearing will be held.  The motion papers will be passed along, via the clerk, to the appropriate judicial officer, and it is up to the Court, if it so chooses, to schedule a hearing.  The Court has the option of ruling on the basis of the moving and opposition papers, without hearing oral argument.]

The major courthouse development this week, as first reported by Mr. Turkewitz, has been the filing on behalf of defendant Max Kennerly of a Motion to Dismiss [PDF] on the merits.  That motion raises many of the legal issues that can be expected to be central to the case going forward.

No other filings have been reported this week.  The large institutional defendants, such as the Washington Post and the American Bar Association have yet to appear. 

Rakofsky Online

As happens with most news, as time passes and as the Rakofsky case ages the frequency of commentary upon it also slows down.  The most notable blawg post relating to the case in recent days comes from [defendant] Carolyn Elefant on her MyShingle.com blog, who offers "Practice Tips, Courtesy of Rakofsky v. The Internet," a series of practical DO's and DON'T's gleaned from the case so far, such as:

DON’T, DON’T & DON’T ever suggest that a judge – any judge – was part of a conspiracy or “slandered” an attorney in the courtroom.  Let’s just say that those kinds of allegations aren’t going to get your complaint anywhere – except on to the trash heap with the filings by pro se prisoners and the mentally delusional.  On the other hand, if your opponent happens to make these allegations, by all means DO make note of them.  

Indubitably.

Outside of law blogging circles, the case is progressively taking on a life of its own.  Involving as it does issues of speech and liability on the Internet, it is perhaps unsurprising that "The Ongoing Case of Rakofsky vs. Internet" has generated its very own Slashdot thread.

The Rakofsky topic on Twitter, which accumulates new tweets and retweets on a continuing basis, was invaded for a time by trolls in the past few days.  Even Joseph Rakofsky, for whom there's no particular admiration on this blog, is not deserving of the sort of vile (albeit Constitutionally protected) abuse that has been heaped upon him in some of the more fetid corners of the online world.  

More constructively, a current law student remarked:

And the international, or at least multilingual, reach of interest in the case is reflected in this tweet:

The Rakofsky Weekend Update will return to Decs&Excs next week, assuming its return is warranted by developments and public demand.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, 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.  As always, I recommend regular consultation of the Compendio Bennetticus for the fullest range of responses to the case.

Illustration: "Tyre besieged and captured by Alexander" (1696), via Wikimedia Commons.

Weekend Update: Rakofsky v. Internet Week 4

This week's Rakofsky v. Internet update will be comparatively brief, but it focuses on the first significant procedural development in the case:  the initial filings with the Court on behalf of 33 of the 81 currently-named defendants.  

As a practical matter, this week begins and ends with Eric Turkewitz.  

Eric was already known as a defendant in the case, and as the author of what is likely the single most-read commentary on Joseph Rakofsky's defamation action.  This past Tuesday, following the Memorial Day weekend, Eric made it known that he will no longer be merely a defendant.  He will also be local counsel in New York for a joint defense to be spearheaded by First Amendment specialist, Marc Randazza:

Two weeks ago I ripped into Joseph Rakofsky, the newbie lawyer who took on a murder defense shortly after being sworn in as an attorney, and who was written about, up, down and sideways regarding his competence, ethics and marketing.

I wrote at the end of my post, “Yeah, I got more,” and I do. I could easily put up 5-6 new posts on the subject with material others have not yet addressed. This case is, after all, right in my blog’s wheelhouse.  The combination of local access to information along with strong opinions has the potential for potent blog posts.  I’ve also defended a defamation case in the past, where my attitude was no different than here: GSIAH (Latin:  vade et caca in pilleum).

But I’ve elected not to write those posts.  And this is why.  I’m going to be local counsel for 30 of the 81 defendants.  Marc Randazza will be petitioning the court for admission pro hac vice and I’ll be the local guy on the scene while he does the heavy lifting.

Today, Eric rounded out the week by dropping the other shoe, posting copies of the initial motion filed through his office on behalf of the 33 defendants that he and Marc Randazza will represent.  In addition to the pro hac vice application Eric mentions, the motion includes a request that the Court set a single date for all defendants' responses to the Amended Complaint to be filed, so that the case can move forward on a more coordinated and efficient schedule.  

All of the materials posted on Eric's site are worth reading for those who are interested in the case, but two items are of particular note:

First, the Affidavit of Eric Turkewitz [PDF] in support of the motion.  That affidavit serves as a one-stop shop for the overall outlines of the case, a sort of Summa Rakofskologica, if you will, and a glimpse of the shapes of things to come.  If you read just one document, this is the one to read.

Second, a copy of the court reporter's transcript [PDF] of the proceedings held on April 1, 2011, in  U.S. v. Dontrell Deaner, the murder case in which Joseph Rakofsky served for a time as defense counsel.  The April 1 hearing is short—only seven pages—and concerned principally with Rakofsky's being relieved as counsel.  The transcript includes the remarks of the trial judge that Rakofsky's Amended Complaint characterizes as "statements in open court that slandered RAKOFSKY's knowledge of courtroom procedure."  (Rakofsky v. Washington Post, et al., Amended Complaint, para. 117.)  Those remarks are central to the Washington Post report that started it all.  You are now free to read and judge them for yourself.

As I have noted before, I am a defendant in the Rakofsky case, because of my having written this post; I commented on my involvement in the action here.  As the materials posted by Eric confirm, I am also part of the Group of 33 defendants that he and Marc Randazza will represent.  I am proud to stand with that Band of Blawgers as a co-defendant, and to have teh benefit of such able defenders.  

To the extent that I may have any non-public information concerning the case, I have generally not been sharing it in these update posts.  At this point, I make a minor exception to that policy.

Marc Randazza has authorized his clients in this matter to quote him as saying:

"murum aries attigit"

~~~

Illustration: Attack on the walls of a beseiged town, from Charles Knight's "Old England: A Pictorial Museum" (1845), via Wikimedia Commons.

The Cat Came Back: California Allows "Reasonable" Costs of Treatment as Damages for Injury to Pet with No Market Value

Two years ago, in the case of McMahon v. Craig (in which I was counsel for the prevailing defendants), California's Court of Appeal (Fourth District) held that the owner of a pet or companion animal may not recover damages for "emotional distress" or "loss of companionship" when the animal is injured or dies as a result of negligence.  The McMahon decision implied, without quite holding, that because animals are viewed as a form of property, the applicable measure of damages is the same as for any other sort of property damaged or destroyed through negligence: the reasonable cost of repair or the animal's market value, whichever is less.

Left unanswered in McMahon was this question: Under California law, when an animal has essentially no market value, can the owner recover anything beyond nominal damages for its injury or death?  In particular, if the owner seeks veterinary treatment and the cost of that treatment exceeds any measurable economic value of the animal, can the cost of that treatment still be recovered as damages?

That question has now been considered by the First District of the Court of Appeal.  That panel states its conclusion in the first paragraph of its May 31, 2011, decision in the case of Kimes v. Grosser  [PDF]:

A defendant neighbor allegedly shot plaintiff's pet cat.  To save the cat's life, plaintiff incurred substantial bills.  The trial court dismissed the case on the grounds that the plaintiff would be unable to prove the value of the cat exceeded the costs of "repair." In this appeal, we are called upon to determine what damages can be awarded for a wrongful injury to a pet animal with little market value under these circumstances.  We hold that the owner can recover the costs of care of the pet attributable to the injury of the pet attributable to the injury if the costs are found to be reasonable and necessary, and punitive damages if the injury is found to be intentional.  Based on these conclusions, we reverse the judgment dismissing the case.

(Emphasis added.)

In Kimes, the plaintiff's cat "Pumkin" was shot with a pellet gun while sitting on a fence.  Plaintiff took the cat for emergency surgery, at a cost of $6,000. The surgery saved Pumkin's life, but the cat remained partially paralyzed. Subsequent care for the paralysis cost an additional $30,000.  It was essentially conceded that Pumkin's market value was minimal or nonexistent, so the trial court ruled as a matter of law that the veterinary bills were irrelevant and not to be considered at trial.  With all practical value removed from the case by that ruling, the plaintiff concluded that the expense of trial could not be justified and allowed the case to be dismissed so that the determination could be reviewed on appeal.

After discussing McMahon and finding it not to be dispositive of the question before it—the plaintiff in Kimes was not seeking to recover for emotional distress or lost companionship, though one might, mightn't one, wonder whether any consideration other than emotional attachment justified the expenditure of $36,000 for care—the First District looked to a 1915 decision (Willard) in which "certain scrap books and other data" personally valuable to the plaintiff, a writer, but valueless to anyone else were lost in a fire.

The Willard court, quoting an out-of-state case, acknowledged '"it may be that no rule which will be absolutely be certain to do justice between the parties can be laid down"' for property without market value, but '"it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely."'  Under this reasoning, where the property has no market value, the general rule limiting recovery to the loss of that value cannot apply, because it would invariably preclude any recovery.  In such cases, the property's value '"[m]ust be ascertained in some other rational way, and from such elements as are attainable."'

* * *

In this case, plaintiff is not plucking a number out of the air for the sentimental value of damaged property; he seeks to present evidence of costs incurred for Pumkin's  care and treatment by virtue of the shooting—a 'rational way of demonstrating a measure of damages apart from the cat's market value....
Plaintiff is entitled to have a jury determine whether the amounts he expended for Pumkin's care because of the shooting were reasonable.

* * *

[P]laintiff may present evidence  of the bills incurred to save the cat's life and is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat.  Defendants are entitled to present evidence why the costs were unreasonable under the circumstances.

(Emphasis added; citations omitted.)

The Court's conclusion, it seems to me, leads to an anomalous or paradoxical result: the damages recoverable for harm caused to valueless property are potentially higher than those recoverable for valuable property.  If Pumkin, for example, had been a prized show cat that could be shown to be worth, say, $2,500, there is little doubt that $2,500 would be the upper limit on damages and that the case would properly belong in Small Claims Court if it belongs anywhere.  Because Pumkin is without a market value, however, the Court of Appeal justifies a potential upper limit on damages that may be $6,000 or even $36,000, if a jury concludes that it is "reasonable" to expend that much for care and maintenance of a "valueless" cat.  In practical terms, despite its protestations to the contrary, the Court has authorized a recovery for expenses incurred precisely because of the non-compensable sentimental or emotional bond between plaintiff and Pumkin.  Sentimentality has been kept out at the front door, but has slipped in through the cat door.

I am aware of at least two cases, now in their very early stages before the Second District of the Court of Appeal in Los Angeles, that raise more or less the same question as has been addressed in Kimes.  Particularly because I am counsel in one of those cases, it will be of great interest, philosophically and practically, to see whether the Second District will agree or disagree with the First.

~~~

Incidentally: In the concluding paragraph of its opinion, the Court confirms that punitive damages will be available if the injury to the cat is shown to have been "willful."  California Civil Code section 3340 expressly authorizes punitive damages for injury to animals if the injury is "committed willfully, or by gross negligence, in disregard of humanity."  Although that statute has been in place since 1872, Kimes is the first published appellate decision to so much as mention it.

~~~

Photo: "Dog and Cat Repair" by Flickr user lisatozzi, used under Creative Commons License.

Post title courtesy of the National Film Board of Canada:

Weekend Update: Rakofsky v. Internet Week 3 [Updated]

Another week yields another round of online commentary on Rakofsky v. Washington Post, et al., better known as Rakofsky v. Internet.  My initial "Rakofsky week in review" post was sufficiently well received that another edition seems in order.  

~~~

Pleadings/Court Filings

No new filings have come to this blog's attention since last week's report.  New York practice typically calls for responses to be filed within 21 days of service of the Summons, although that deadline is subject to extension by agreement. At this writing, the operative pleading remains the Amended Complaint. There have been no public indications of the state of service of that pleading within or without the State of New York.

~~~

Rakofsky Online

I noted last week that some bloggers who are either named in or closely following the Rakofsky case were of a mind that Right-Thinking People should have a sense of Obligation compelling them to acknowledge and comment upon it.  That sub-theme was the trigger for several posts, and those posts provide as good a starting point as any for this week's compilation:

[Non-defendant] criminal defense attorney Rick Horowitz began his post, "Railing Against Rakofsky," with a statement of his reasons for taking up the subject:

I’ve never been a fan of the draft.  I’m a big fan of friends, though.  And apparently some of my friends are calling me out for not having blogged about the latest poster-child for…what?  I don’t know what I really think Rakofsky is a poster-child for.

Nevertheless, I submit to the draft, if for no other reason than to assure my friends that I do, actually, stand with them on Rakofsky.

Public defender [and non-defendant] Daniel Partain asked rhetorically "Why have not more lawyer bloggers commented on the Rakosfy debacle?" and tried to answer.

What in some circles proved the most controversial Rakofsky post of the week came from [non-defendant] Dan Hull of What About Clients?/What About Paris?, who argued in his post—"Rakofsky Bad. Defendant Lawyers, 4th Estate & 1st Amendment Good"—his opinion that there is something unnecessary or excessive in the negative attention being leveled at plaintiff Joseph Rakofsky and his suit, neither of which may be worthy of the aggravation or the effort. Speaking as a litigator, he also articulated his practical, tactical discomfort at the prospect of litigants providing running commentary on a case in which they are actively embroiled:

Once you're served, you don't tell everyone you meet about it. Talking, writing and venting post-suit hits already-raw nerves, fans fires, generates unneeded 'evidence', . . . and stretches out proceedings and pretrial by-play by months and even years.

Needless to say many blawgers, including particularly a number of the defendants, were not persuaded to Mr. Hull's point of view.

A long post at [non-defendant] Popehat disdained the Rakofsky suit for its futility, among other things: "Maybe 'I Sue The Internet!' Is This Generation’s 'I Attack The Darkness!'"  On Twitter, Popehat also opined on a potential procedural issue in the case:

Additional procedural crystal ball gazing was provided by [non-defendant] Mark Zamora on his blog, A Georgia Lawyer.

From across the Atlantic on the Anna Raccoon blog, [non-defendant] Matt Wardman remarks:

This has happened before on the Net, and is the internet equivalent of erecting a large sign pointing at yourself labelled 'whompa', rather than the more logical action of stopping digging and hiding in the bottom of the hole you just created.

[Defendant] Josh King weighed in on the Avvo Blog with a bit of "how did we get here" analysis, asking whether the problem lies in a lack of mentoring or a lack of awareness.

Non-lawyers also began offering their perspective on the case this week.  First, on The Fraud Files Blog, forensic accountant/fraud examiner Tracy Coenen drew conclusions reflected in the title of her post: "Rakofsky suing the internet: Career suicide."

On Friday, powerhouse IT site Techdirt provided its readers with a summary: "Recent Law School Grad Gets Berated By Judge, Then Sues Nearly Everyone Who Discussed The Case." Although Techdirt declares that "[t]his one seems like it will be fun to follow," the post re-fired the question whether the case is worht following or attending to at all:

Closing out this week's survey, the latest from one who is following the case as aggressively as anyone.  On his My Law License blog, [defendant] Brian Tannebaum turned his attention from the merits of the action to parsing the online presence of Joseph Rakofsky's legal representative, inviting his readers to Meet Richard Borzouye . . . Joseph Rakofsky's Lawyer.

Mr. T's post drew this link and comment from [non-defendant] Kevin O'Keefe on Twitter:

C'mon, Kevin: those scare quotes are just mean.

The Rakofsky Weekend Update will return to Decs&Excs next week, if warranted by developments, public demand, and the blogger's inclinations.

~~~

Update [0840 PDT]: Just in time to have missed the deadline for the original version of this post, [defendant] Scott "Simple" Greenfield, as alway on the lookout for the Teachable Moment, finds it:

Few matters offer more lessons than this one.  It offers lessons about competence.  Lessons about marketing.  Lessons about responsibility, honesty, integrity.  About greed.  It offers lessons about hole-digging and making a bad situation worse.  For young lawyers, particularly the Slackoisie, this is a case study that should be taught in every law school in the country.  Any lawprof teaching professional responsibility who neglects the Rakofsky Effect has not fulfilled his duty.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, because of my having written this post; I commented on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, I will not be sharing it in these update posts.

[Defendant] Mark Bennett has been updating regularly the 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 responses to the case.

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Illustration: The calling card that served as trigger for Oscar Wilde's wildly unsuccessful libel action against the Marquis of Queensberry, via Wikimedia Commons.  "The letter A in the bottom left corner was added at the time of the trial to indicate that it was exhibit A."