May 15th, 2013

Lawyering Under the Lights (And Thoughts on the Rakofsky Dismissal)


OK, the Rakofsky v. Internet decision is in, and the motions to dismiss were all granted. The motion for sanctions was denied. (Your familiarity with the facts will be assumed.) You can read a variety of opinions on the subject here: Simple JusticeTechdirt, Popehat, Lawyernomics, Philly Law Blog, My Shingle.

But I’m not writing to rehash the opinion (Here, if you want to read it). I’m writing instead because of the bizarre scenario that occurred where I wore three different hats. And to give my thoughts on standing my ground in this fight.

First I was a blogger that mentioned Rakofsky in a post about attorney advertising.

Then I was a defamation defendant telling him to go shit in a hat after he sued me for stating my opinion, along with a gazillion others.

And then I was local counsel for 35 defendants (16 authors). Almost all of them were highly opinionated attorneys, had law blogs, and knew perfectly well how to stand on their own two feet in the well of the courtroom. (Client list) There wasn’t a flinching fawn anywhere in this group.

I took the gig as local counsel because I assumed it would be easy. The case clearly had no merit, would need a simple motion to dismiss, and  **poof** it would be gone. I figured six months, tops, and First Amendment guru Marc Randazza was going to do all the heavy lifting as our pro hac vice counsel while I worried about local procedure on my home court.

Now lawyers working either on contingency or for a flat fee make those kinds of calls all the time, balancing the time they think they will invest in a matter against the value gained. But this took two years, confounding all expectations, and required a lot of extra time with some pretty sharp minds looking on. While I’ve had high profile cases before — including one that hit 60 Minutes some years back — I didn’t have blogging lawyers as clients and a profusion of popcorn eating armchair pundits looking on and reading the filings.

Most readers only know me through this blog, not by watching the actual practice of law. I have a separate website for my law practice (which I still hate), and I do that on purpose.  The contents over here are opinion and news, and the contents over there are a digital brochure for lawyering. I rarely link to the website, or even mention it, and it’s seldom visited relative to this blog’s traffic. People here don’t watch me practice law.

But everything was now different as I became a crazy cocktail of blogger, defendant and lawyer — shaken (not stirred) together. And folks were watching.

Given that blogger/defendant/lawyer brew , it puts me in a good position to shed some light on why this took two years, as some have criticized New York’s judiciary system for the delay. This is the short version of the procedural morass — including plaintiffs’ counsel quitting and our first judge retiring:

I know that this seems like a lot, but it really is the short version.  It should have been simple, but it wasn’t. That sucks for those involved, but really, what were the odds that the plaintiffs’ lawyer would quit and then the judge would retire? Those were both biggies.

Is it possible the case could go on further with an appeal? I suppose it is, but as pointed out elsewhere, the judge was quite charitable toward Rakofsky by not sanctioning him, perhaps believing he’d been punished enough with the scathing online commentary, albeit much of it brought on by his own conduct.

But appellate judges might not be as dismissive as the trial court was of his having held himself out as a New York lawyer and putting a New York law office on his letterhead when he’s not admitted here. Leaving aside the cost of an appeal, there is much to lose by having appellate judges look at the conduct that many were already criticizing.

I gave up long ago trying to make predictions about this case, so I won’t make any here about whether it’s truly over. In fact, I try not to make predictions on any of my cases since the vagaries of life and litigation tend to upset the prediction applecart.

But assuming it is over, since that is what logic tells me, we move to the ultimate question: Was it worth being part of the defense team?

first-amendment-719591The answer has to be yes. The clients I have are like-minded individuals that cherish the First Amendment and are willing to fight for it. They could have easily ponied up the $5,000 that Rakofsky wanted early on to make the case go away, but they elected to fight. These are the types of people you want in your foxhole.

The message should go out loud and clear to all that consider bringing a frivolous suit against us. We make our living within the justice system, many of us by battling in the courtroom well. We have a pretty good grasp of how the courts work and the bounds of our freedom to speak and to write that are immortalized in the Bill of Rights.

We think it’s important to shine a light on ethical issues that we see with respect to attorney conduct that we believe crosses red lines, in the grand hope that such light becomes a disinfectant for the legal community. We do not want to see the cops’ Blue Code of Silence or the medical community’s White Coat of Silence darken our profession.

We will not cower or wilt under fear of empty threats or vacuous suits. Those that attempt such intimidation will find hardened and opinionated citizens who don’t care to relinquish our rights to speak freely. We know how to stand on the ramparts to fight for those rights, and we know how to win.  Representing such resolute individuals, despite the procedural shambles that ensued, has been my honor.

Was it worth doing? You’re damn right it was.


January 18th, 2013

Lance Armstrong and Fraud on the Court

Having now confessed to Oprah about doping in order to win seven Tour de France titles, Lance Armstrong is obviously in a heap of legal troubles. Most of those seem to involve his perjury (criminal), defamation of others when he called them liars for calling him a cheat (civil), and a slew of contractual issues regarding his sponsors.

Sports Illustrated gives a decent wrap-up of his legal woes, athletically, criminally and civilly.

But there is another aspect many might miss — by bringing defamation claims against others when they called him a cheat, and knowing that his lawsuits were bogus, he committed frauds on the courts themselves.

The operative case here is Chambers v. NASCO from the US Supreme Court. This decision observes that, independent of any particular statute or rule, a court has an “inherent power” to sanction for fraud or bad-faith conduct. This includes  conduct undertaken “vexatiously, wantonly, or for oppressive reasons.”

That’s a pretty big catch-all provision. I suspect there will be a couple of pissed off judges out there who will have no problem using this rule (or similar state rules) to haul Armstrong before the court. And I expect that this won’t take all that long to happen.


May 17th, 2012

Rakofsky Moves to Amend His Defamation Case (Updated x2)

Joseph Rakofsky, as seen on a copy of his website, which has since been taken down.

Joseph Rakofsky, who last year sued the Internet for defamation and then amended his suit to add more parties, is now asking the court for permission to amend his suit again.

The proposed Second Amended Complaint weighs in at a staggering 268 pages, with 1,223  separately numbered paragraphs. No, I haven’t read it, but I see that it does contain a brand new tort he calls Internet mobbing, which I understand is a claim that prohibits use of the Internet for criticism and revokes the First Amendment. Feel free to wander amidst the legalese and let me know what these papers actually claim.

I will get to it, of course, since I am one of the defendants and also local counsel to 35 defendants. Marc Randazza is lead counsel for our group.

The motion to amend is made because, in New York, you only get to amend a complaint once as of right, which right he already used up just days after starting the suit. After that judicial permission is needed, or else a plaintiff could be constantly moving the goal posts making the case impossible to defend to conclusion.

Mr. Rakofsky also asks for additional relief in the form of amending the caption to correct the name of the lead defendant, the Washington Post, which had originally reported the story of Mr. Rakofsky’s troubles defending a murder trial in Washington D.C. and the judge’s highly uncharitable comments about his representation. The same judge added more just weeks ago when Rakofsky’s former client was sentenced to 10 years after a plea, and called the defense “clueless” and “motivated by self-interest,” according to Jamison Koehler who practices in that neck of the woods.

Other requested relief is to delete eight defendants from the caption because they settled with Rakofsky, including St. Thomas School of Law. And he seeks a default judgment against seven defendants who didn’t bother to answer the complaint at all, presumably because they are out of state and not subject to jurisdiction in New York.

Previously he had moved to add Yahoo! Google and Tech Dirt, but that relief is not mentioned in the Notice of Motion. The current attempt to amend the amended complaint is actually shorter this time than last.

There are numerous motions pending to dismiss. These papers do not address any of those motions.


Cross-Motion and Affidavits (total, three pages)

2nd Amend Complaint pt 1 (part 1, 118 pages)

2nd Amend Complaint pt 2 (part 2, 151 pages)

Update (6/8/12):

My Affidavit in Opposition: ET-OppAffFinal

Our Memo of Law in Opposition: Rakofsky Opp to SAC -Final

Update (6/26/12):

Rakofsky’s Reply Memo of Law:ReplyOnMotionToAmend



December 27th, 2011

The 8 Craziest Lawsuits of 2011 (Are They Really?)

A guest blog today, from David Waterbury, a local personal injury attorney I’ve had the pleasure of knowing for about 25 years or so, from the days I worked at my first job after law school. And Waterbury has decided to take on the latest “list” of dubious lawsuits. But are they frivolous?  Dave checks out a few of them…


It’s that time of year again. The calendar says everybody and his third cousin has to make a list of the Top 10, Top 100, Top 5 or Top However-Many of the Best, Worst, Funniest, Stupidest things that they think anybody else might be interested.

So naturally, we here at the NY Personal Injury Law Blog found our interest piqued when we saw this, from The Week, on the 8 craziest lawsuits of 2011. Now this is hardly the first time that somebody has compiled a list of what they perceive to be “wacky” lawsuits.  In fact, one such list famously manages to make the viral e-mail rounds nearly every year.

The problem is, ALL of the lawsuits in that famous e-mail list are fake. Completely made up by the enemies of justice as part of their public relations campaign to close the courthouse doors to Americans. The difference in The Week’s list of The 8 Craziest Lawsuits of 2011, and what makes it worth blawging about, is that at least some, and quite possibly all, of the lawsuits on the list are real.

So, after we have chuckled, chortled, whined, groused or ranted about crazy/stupid/frivolous claimants and there claims, is there anything to actually learn from this?  I think so.  One thing we can learn is to never judge the merits of something as serious as a lawsuit from a cute and clever couple of sentences in an on-line magazine.

At least a few of the eight suits listed by The Week appear to have some merit or value.  Take, for instance, suit number 7 from the list: “The Walmart customer who sued over two cents.”  The “real” truth behind this case seems to be that Walmart was being accused of systematically overcharging its customers by rounding up to the nearest dollar.  As one of my colleagues, New York plaintiff’s lawyer, Mark R. Bower, said,

[this] is, in effect, a class action claim writ small. If the claimed ’rounding error’ is true, Walmart is ripping off consumers collectively for major amounts, 2 cents at a time. The fact that the plaintiff was awarded $180 damages by an impartial judge demonstrates the validity of the claim, while at the same time, gives a modest award that is a reasonable remedy. If enough people were awarded $180 for this offense, Walmart would stop this conduct. “

Indeed they should, and perhaps, now, they will.  If not, it may be time for a “real” class-action suit.

Another case on the list that is worth looking into a little more closely is this: “5. The employee who got fired for working overtime.” Now I don’t profess to have inside information on this claim, but I do know that wrongful termination lawsuits are on the rise, particularly in the last few years and at least one of the reasons is that many employers are looking for reasons to let people go, due, in part, to the economic down-turn.

According to The Consumerist, the manager said he was forced to work more than 40 hours a week without receiving overtime pay. He was often off-duty on break, having punched out,  but had to help someone and then tried to turn the clock back on. But he couldn’t  turn if off again for 1/2 hour. The firing was retaliation for the complaints he had made about being denied uninterrupted breaks.

If, in fact, working through his scheduled lunch break, helping out customers or co-workers, was one of the reasons used to justify this employee’s firing, well then Target deserves to get sued over it, and the manager deserves to win his job back along with back pay and damages. It’s likely that the actual facts and allegations were somewhat different than the way they were couched in The Week‘s article, whether the editorial skewing for entertainment purposes was at the expense of the store or the employee, we don’t know.

Another suit worth taking a little deeper look at is “8. The kids who sued mom for failing to spoil them.”  In coming up with a headline that would grab the reader’s attention (and prime them for hating this case before knowing anything about it) The Week’s editors really crossed the line.

The appellate judge who authored the opinion affirming the dismissal of the suit, First District Appellate Court of Illinois Justice Joseph Gordon, nonetheless termed the mother’s actions towards her as “erratic,” “spiteful,” “less than generous” and not “sensitive to the material and emotional needs of her children.” The case was dismissed, according to this HuffPo article, becasue, “The case’s dismissal was attributed in part to the legal ramifications of establishing a precedent allowing retributive actions for parenting style that doesn’t constitute abuse.”

While I think justice was certainly done here, there is something to be said for, in the appropriate circumstances, using the civil courts to test where the boundaries of bad behavior lie. Certainly the mother was not vindicated here.  In my book, as both a lawyer and a father, being erratic, spiteful, ungenerous and emotionally insensitive to one’s children and their needs is borderline child abuse. It is way at the other end of the spectrum from “failing to spoil them.” Shame on you The Week!

“4. The woman who sued after being ‘forced’ to listen to Limbaugh.” My personal feelings that being forced to listen to Rush constitutes cruel and unusual punishment in violation of the Eight Amendment to the U.S. Constitution, aside, this appears to be, at its core, a false arrest/false imprisonment case.  The part about being “forced to listen to Rush” part seems to be an expository item on the issue of her damages for being falsely arrested.  In addition, it seems likely that her complaint regarding Rush was the allegedly racist content of show during the time she was a captive audience, rather than it’s purveyor.

While at first blush, “6. The groom who demanded a restaging of his wedding” seems to be a poster-child for a crazy litigant pursuing a frivolous claim.  But wait! There’s more!  It seems that this was actually just a small claim about bad wedding pictures.  Everybody knows somebody whose wedding photographs lousy.  Not just the occasional bad proof, but every-photo-has-somebody-with-their-eyes-closed-picking-their-noselousy.  The type of lousy that we pay professional photographers $4,100 to prevent on our wedding day.

According to Above the Law and the New York Times, the part about re-staging the wedding was not a claim in the Complaint, but popped out of the plaintiff’s mouth at a deposition. Oops!  Unhappy lawyer for sure. Oh, Goodwin Proctor, the plaintiff was the son of one of the partners.  They understandably were handling the small commercial matter for him, at least until the plaintiff had his brain-fart.

And finally, there is “1. The couple who sued over a mid-air cockroach sighting.” By way of background, it is important to note that insect and other vermin infestations often provide the underpinnings to valid legal claims.  Restaurants, for instance, can be fined, and even closed down, if they fail to keep their establishments relatively free of pests, including roaches.  Roaches are dirty.  They harbor and carry diseases and other germs.  They are attracted to food consumed by humans. They are averse to light and can seemingly fit through impossibly small openings.  If one happens to get into or onto your airline food, you could become sick.  If one manages to get into your carry-on or other luggage, you will be bringing home a portable infestation.

On a more serious note, many people are pathologically frightened of insects and bugs.  My own girlfriend, for instance, would likely have a full-on anxiety or panic attack if she were confined on an airplane for several hours with cockroaches crawling out of the ventilation system.  I’m talking serious: Nausea, vomiting, uncontrollable shaking, crying, headaches, followed by at least several weeks of persistent nightmares.  In fact, according to the Huffington Post (which appears to be where The Week’s author seems to have exhausted his or her research skills) reports here:

Other passengers, they allege, became aware of the issue and some were even physically sick.

A news report has pictures of the roaches coming out of an overhead vent. While this might not be the most valuable lawsuit to come down the pike lately, it is far from “frivolous.”  I am betting the airline pays them something to settle this because it has merit.

So what can we learn from this:

1) Don’t believe everything you read (even here!) Check out the real facts before forming an opinion.

2) Almost any lawsuit can be made to sound “crazy” by careful editing. Magazines, particularly those on the internet, survive by grabbing your attention.  Too often, the real facts and issues of a lawsuit don’t have sufficient attention-grabbing interest, so the editors have to create it by playing fast and loose.

3) Just because a suit has minimal dollar value to the litigant, doesn’t make it frivolous.  In fact, much social good can be done by folks willing to take a financial hit in order to do the right thing, like keeping a multi-billion dollar chain from stealing millions of dollars from working folk, 2 cents at a time.  Most of us don’t or won’t do it, but those who do deserve to be honored, not ridiculed.

4) The justice system generally works in this country.  Sure, everybody has their own favorite story or two of when it didn’t, whether criminal or civil, but for the overwhelming majority of cases, it works just fine.  Click here to view a famous foreign observer’s homage to the American jury system

5) There is an economically and politically powerful lobby in this country, consisting largely of big business and the insurance industry, and coordinated by the U.S. Chamber of Congress and the NAM, who have a vested economic interest in closing the courthouse doors to average Americans.  Articles like that in The Week serve their interest, usually not by chance or coincidence.


October 25th, 2011

Rakofsky Moves to Add Yahoo!, TechDirt and Others to Defamation Action; Asks Sanctions Against Former Lawyer (Updated x2)

Joseph Rakofsky, as seen on a copy of his former website

[This post was substantially updated on October 26th, with new documents added and more informaton on the new claims)

Joseph Rakofsky has not, quite apparently, put away his shovel. He is still digging. (Synopsis of case and my opinions before becoming local counsel, here.)

He has now filed a motion to amend the complaint a second time, with a 300-page whopper including 1,248 paragraphs. He has 78 causes of action and demands, and, if my calculations are correct, he demands $145,000,000 in damages.

In addition to the extraordinary damage claims, Rakfosky seeks to add Yahoo! and TechDirt into the lawsuit, among 15 new parties.

And he seeks to create a new cause of action for Cyber-bullying, or Internet Mobbing, due to the things people wrote about him after his ill-fated trial before Judge William Jackson down in Washington DC.

He has also asked for sanctions against his former lawyer, Richard Borzouye, who had asked to be relieved as counsel, with the consent of Rakofsky.

And he still has the St. Thomas School of Law listed in the Complaint, even though it capitulated with a settlement.

And he still sues on behalf of his professional corporation, even though he may not do so without counsel.

He also wants to start engaging in discovery, seeking subpoenas to get information from Google and other places about anonymous defendants.

He also has engaged a self-professed expert in forensic computer work in an attempt to gain access to the computers of some of his critics, Osvaldo Alayon, though Alayon doesn’t bother in the affidavit to lay out the basis of her expertise. A Google search of  — “Osvaldo Alayon” forensic computer — turns up zero hits. The claim is that one of the defendant websites has evidence of child pornography on its site. In viewing the Affidavit and Exhibits for that claim, I feel compelled to give this legal warning: The comments and pictures are infused with sophomoric  humor and badly photo-shopped photographs, internet memes, and inside jokes that will be seen as witless to some and irreverant to others. There is no actual child porn, so if you are into that kind of thing, well, do me a favor and go away and never come back. The affidavit is here and the exhibits are here.

And he is asking for a default judgment for those that have not appeared.

Yeah, that’s a lot of stuff. Here is a very quick guide to some of the new claims, though this isn’t by any means comprehensive, and is put together based on a quick skim of the materials:

You can find the Notice of Motion and supporting Affidavit at this link.

Part 1 of the proposed Second Amended Complaint is here and Part 2 is here. The scanned images are large files as Rakofsky refused to serve anyone with digital files.

A few notes on the Complaint, as it is so large, in order to help you find things:

Pages 1-29 – identify parties

Pages 29-55 Rehash of trial and claims against Washington Post

Paragraph 140 he writes that Judge Jackson made “denigrating” remarks about him on the record, writing that the judge “for reasons that can only be speculated, gratuitously published on the record that he was ‘astonished’ at Rakofsky’s willingness to represent a person charged with murder and at his (Rakofsky’s) ‘not having a good grasp of legal procedures’.”

Paragraph 144 he gives his explanation for the “trick” email that he sent.

On page 140, the action against St. Thomas School of Law and Deborah Hackerson is continued even though he settled with them.

New action against The Atlantic Monthly and Yahoo! are on page 161

New action against TechDirt and its writer Mike Masnick is on page 164

New action against Canadian Lawyer Magazine and Reuters Canada on page 167

Total demands for defamation he makes are $46M ($1M for each of 38 causes of action except for Greenfield and me for $5M each)

Page 170 is the end of the defamation claims, and the ones for Intentional Infliction of Emotional Distress starts here — demand for damages is $10M

Page 178 is the claim for interference of contract. $10M demanded

Page 181 is a claim for violation of Civil Rights Law for use of his image in the news stories, claiming it was used for advertising purposes – total demand is $10M

Page 184 is a claim for “Intentional Interference with Prospective Economic Advantage” and a demand for $10M

Page 186 is a claim against Washington Post for “Injurious Falsehood” and a demand for $1M. This is the 43rd Cause of Action, and similar claims continue until page 294 at the 77th Cause of Action, at $1M demanded for each, for a total of $34M

On page 294 is a claim for “Violation of Prima Facie Tort” which he defines as “mobbing” or “cyber-bullying” and a demand for $25M

Update #2 – 11/18/11 – Motion is withdrawn, as per the Court, as it was filed while a stay was in place