Declarations and Exclusions

Marc Randazza: The Mark of Excellence

You will recall, perhaps, that I am a defendant in The Litigation Commonly Known as Rakofsky v. Internet. I have not posted updates on the case since last October, principally because the case was subject to a stay order. With the stay in place, there weren't much of nuthin' happening in the case. The stay expired on March 9 and, like maple sap in spring, the motion filings have started to flow again. The updates will start flowing again soon as well.

Today, as play resumes in Rakofsky, I want to take the opportunity to acknowledge the lawyer leading my defense, and the defense of more than thirty other defendants, most of them blawgers, in the Rakofsky litigation: Marc Randazza.

I had heard of Marc Randazza prior to being named as a Rakofsky defendant, but I had never had any contact with him. His presence and reputation were known to me through his blog, The Legal Satyricon, and through the blogging of others, such as Scott Greenfield or Ken-at-Popehat who know him firsthand.

Marc Randazza is a zealot, but a zealot of the best kind. His zealotry finds its focus in the First Amendment, and particularly the portions of that Amendment protecting freedom of speech and expression. Speech, without regard to its couth, its coarseness, its wisdom, its dunderheadedness, its cultural value, its tendency to discomfit or offend, is embraced by the First Amendment, and Marc Randazza has devoted his career to its preservation. Like Horatius at the bridge, Marc Randazza stands beside the Sluice of Speech to defend it and to see that its flow stays as wide and as free and as indiscriminate as possible.

What do we burn, apart from witches? More witches! What must we defend, apart from speech? More Speech!

Marc Randazza sees the Rakofsky suit, and far too many like it, as an attempt to pervert the power of law to the cause of stifling speech. He leapt, almost unbidden, to the defense of the Rakofsky blawgers in need of representation. With able assistance from Jay DeVoy of Randazza Legal Group and of our ace local counsel in New York, Eric Turkewitz, Marc Randazza is doing what is needful for me and for all of his other clients.

Marc Randazza has my back, and my back joins the rest of me in being grateful for it.

He is the man.

Thanks, man.

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.

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.

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.

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.

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.

~~~

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."