Joseph Rakofsky — I Have An Answer For You

Joseph Rakofsky, as seen on a copy of his website, recently taken down.

I’ve been sued. I’m 51 years old and this is a first for me, both personally and professionally.

And it flows from a post I wrote last month about the depths to which some attorneys will sink in their marketing, that also happened to mention that Joseph Rakofsky was incompetent as a lawyer. Also, that he had an ethical issue regarding an email he sent to an investigator asking him to “trick” a witness. He sued me for defamation.

First the background on how the suit came to be, in case you haven’t already read one of the gazillion other stories about it; I’d only dealt with it briefly before. I’ll also discuss how I’ve dealt with four past legal threats I’ve received. And finally, I’ll tell give you my response to being sued.

Pull up a chair. The story is good. Unless, of course, you are Rakofsky. Or his lawyer, Richard Borzouye.

Background of the murder trial and lawsuit

The basis of  my initial comments was an article in the Washington Post regarding a criminal trial Rakofsky defended. And the Post had, in turn, quoted the presiding judge among its sources.  The Post told the tale of the 33-year-old Rakofsky, a 2009 law school graduate admitted to practice in New Jersey, taking on his first-ever trial. A murder defense. In Washington D.C. Where he’s not even admitted to practice. (see: D.C. Superior Court judge declares mistrial over attorney’s competence in murder case)

So Rakofsky hired local counsel to help him, and get him admitted to practice in D.C. for the purpose of this one case. Nothing wrong with that part if, of course, he could properly handle such a case. Which the presiding judge said he couldn’t, with the Post reporting that the judge was “astonished” at Rakofsky’s performance and his “not having a good grasp of legal procedures.” Also, that his performance in the trial was “below what any reasonable person would expect in a murder trial.” And that ” there was not a good grasp of legal procedures of what was, and was not, allowed to be admitted in trial, to the detriment of [the defendant].”

And the Post also reported that Rakofsky’s own co-counsel, that he hired to help him, said, “He was the attorney of record. I would offer what I thought was the best advice, and he wouldn’t accept it.”

And then there was the part about trying to “trick” a witness. According to the Post:

The filing included an e-mail that the investigator said was from Rakofsky, saying: “Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.” The e-mail came from Rakofsky’s e-mail account, which is registered to Rakofsky Law Firm in Freehold, N.J.

A mistrial followed, the story was published, and the legal blogosphere lit up with commentary, much of which dealt with his website and marketing where he pretended to have vast experience, when in reality he had little.  Much of that experience that he boasted about, it seems, came from being an intern, not a lawyer. Bloggers wrote about his incompetence and ethics problem, much of it in gory detail with full orchestration and 5-part harmony.

As a lawyer, he was still in his puppyhood, though you wouldn’t know if from the experience he described on his website.**  On the Internet, nobody knows you’re a dog.

Still with me here? Because this is where it gets really bizarre.

Did Rakofsky go to lick his wounds and repair the damage he had done to his own reputation? No, he did not. Did he send emails or make calls to those bloggers he believed got the story wrong in order to give his version of the events? No, he did not.

Instead, he sued. Everybody.  This included the Washington Post, The American Bar Association, and Thomson Reuters. Scott Greenfield (one of my co-defendants) instantly dubbed the suit Rakofsky v. Internet. The Complaint is here. Mark Bennett (another co-defendant) has a compendium of posts on the subject, so I won’t give much more background.

Then, after getting ripped to shreds based on the frivolousness of the suit –after all, the bloggers he had sued were relying on a Post story quoting a judge —  he amended his Complaint to sue even more. When you only own a shovel, I suppose, you only know how to dig.

With the story in the news, one of the jurors appeared to reinforce what everyone was saying. Except worse. He wrote:

It was obvious from the opening statements that Mr Rakofsky was way out of his league and poorly trained for a proper court defense. Whatever momentary empathy any of us on the jury may have felt for Mr Rakofsky’s absolute ineptitude, were quickly absolved by our knowledge that a young man’s entire life was at stake. The absolute amateurish antics displayed by Mr Rakofsky were repulsive and oddly narcissistic. He had very little command of the law, and now hearing that Mr Deaner’s family actually hired him is truly upsetting. Most of us assumed that this was a court ordered public defender that may just have been too young and overwhelmed by a huge docket of cases to put together a proper defence. (More ugly comments from the juror about Rakofsky here.)

And so, buried deep on page 53 (paragraph 165 of the original Complaint and paragraph 172 of the Amended version if you are hunting this down), Rakofsky makes a claim against me, for writing thusly:

Ethics also comes into play with deception, as evidenced by one Joseph Rakofsky, a New York lawyer with scant experience, but whose website sung his praises in oh so many ways. Then he got a real client. Defending a murder case. Which of course, he was utterly incompetent to do…

(Where I will be in all the future amended Complaints is, of course, a mystery, as people continue to write and ridicule,  and he will presumably spend all of his waking hours amending and re-amending until he gets carpal tunnel syndrome.)

Rakofsky claims in the part of the suit pertaining to me, that “”Rakofsky was never declared ‘incompetent’,” as I had written. But he is wrong. He was declared incompetent. By me. And, of course, by many, many others. (Post headline read: D.C. Superior Court judge declares mistrial over attorney’s competence in murder case.)

Having given the basic outline of the story, I now turn to the part where I give my opinions. So let me go on to say that: In addition to being incompetent, I also think, based on the comments of the presiding judge, his co-counsel and the juror that spoke up, that he is unskillful, incapable, inept, unqualified, untrained, unprofessional, and clumsy. This is in addition to being a bumbler, blockhead, dolt, dingbat and chucklehead for having brought this suit, guaranteed to rain much unhappiness unto his name. I’ve got a thesaurus and I’m not afraid to use it.

But a Complaint in a lawsuit demands an Answer. That is a document that we lawyers file in the big white building with the fancy columns downtown. As it happens, that’s my home turf. I tried my first case there back around 1986, and I last appeared there this morning.

But hey, I got a blog too, so why not give a little explanation for why I will Answer the way I will?

How I’ve handled past legal threats:

I’ve been threatened with legal actions at least four times that I can remember. The first came from Avis, where one of their associate general counsel’s told me to cease and desist using the Avis logo to decorate my blog for a post regarding immunity for rental car companies. I had great fun with that, engaged the intellectual property bloggers to crowdsource legal opinions, and then told Avis to go stuff it.

The second one also came from a General Counsel, also from a large  company displeased at my using one of their  images to decorate a post about the company. She called me. I suggested she send a  letter to me setting forth her position why it wasn’t “fair use.” She never sent the letter. Smart move.

A third one came from someone unhappy that I linked to her. Go figure.  My spam folder is filled with solicitations asking for links. While the post was a simple nuts-and-bolts practice tip about intake questionnaires – and possibly the most boring post I ever put up on my site, so please forgive me for even linking to it —  I nevertheless told her also that I wouldn’t take it down. Then she changed the text of the post I had linked to, making the link irrelevant, and I had to kill the link. But the post stayed up in all its awfulness.

A fourth dealt with the issue of insurance fraud, and a company that provides so-called “independent” doctors for defense medical exams, except that a doctor on the witness stand was caught with written instructions directing him to omit opinions from the “independent” report if they were favorable to the plaintiff. I heard about it through the grapevine and put on my journalist hat to see if I could find out who did this slimy thing. I tracked the company website to a doctor’s home address and published it. Then I got a call from a screaming lawyer (the doctor’s son) because I had put his father’s home address on the web, and moreover he told me, his father had nothing to do with the company. I hung up on him as he was threatening to haul me in front of a judge. Then he called back, having cooled his heels a bit, and ‘fessed up  that he was actually the owner of the company with the slimy instruction letter. So, because I now had additional (and much better) information, that being his admission to being the company owner, I edited the post to bring it up to date (and explained why).

My Answer to Rakofsky:

Now we are here. An actual lawsuit against me. You probably have the idea by now that I don’t suffer fools too gladly. And that posture doesn’t change today.

One of the demands Rakofsky made is that the defendants not mention his name. Or use his picture. Which is truly bizarre. He seems desperate to scrub the Internet of his follies.

I am tempted to write, in response to the suit, “Go shit in a hat and pull it down over your ears.” But that doesn’t sound very lawyerly. So I’ll say it in Latin. Vado shit in a hat quod traho is down super vestri ears.*

OK, maybe I used a translating website for that. You don’t really think I write Latin, do you? I suppose, for future reference, we can just call it the GSIAH defense. Or VSIAH if you like the pseudo-Latin that came out of the translator and you want to wow your friends with your knowledge of the Internet’s hottest new acronym.

Yeah, I digressed. But that was worth it, no?

What was Rakofsky thinking? That a bunch of lawyers that make their living in the well of the courtroom, accustomed to walking a high-wire without a net as we cross-examine hostile witnesses, would somehow cower in fear at an utterly frivolous lawsuit? Did he think that those of us that write blogs, for all to see, might not somehow have a basic grasp of the First Amendment? Didn’t he know, well before he even went to law school, that people have a right to set forth their opinions? How could he survive law school and pass a bar exam without knowing constitutional fundamentals? Perhaps the better question, why wasn’t he thinking of what would happen in response to such a suit? Was he a spoiled child that got everything he wanted simply by throwing a tantrum?

And those of us that are practicing lawyers are the small fries, compared with our co-defendants Washington Post, American Bar Association and Thompson Reuters. Like they are going to roll over and  pull down their articles? Good grief.

Rakofsky’s choices at this point seem limited. But certainly, the first thing he ought to do is put away the damn shovel as he is burying himself with it.

Yeah, there’s more to come.

*Update: I’ve been told by Luigi de Guzman that the proper translation, or as proper as possible, is vade et caca in pilleum et ipse traheatur super aures tuos (go shit in a [knit] hat & let that same hat itself be pulled over your ears).

Update #2: This post has generated some unusually heavy traffic, so here is my official Welcome to all you new readers getting ready to head out the door…

**Addendum (5/26/11) – While Rakofsky apparently took down most of his websites/marketing as of this writing, at least one of them has been preserved  at this link as an example of misleading attorney marketing for a lawyer just starting out. I have used a photo from that source.  The picture serves as a contrast to the older, gray haired gentlemen — who apparently have no relation to Rakofsky’s  firm —  that also were used on the Rakofsky site.

Update #3 (5/31/11): The Rakofsky Defamation Case (And Why I Won’t Be Posting Much)

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67 Responses Leave a comment

  • thenambypamby 2011.5.18 at 12:27 | Quote

    If nothing else, this frivolity has lead to your creation of a legal defense on par with the Chewbacca defense. I salute your legal genius.

    Now, if you’ll pardon me, I’m going to go use the VSIAH defense in a conversation with a persnickety Plaintiff’s counsel.

  • M. 2011.5.19 at 06:00 | Quote

    Sad. What’s the creep’s (oops, now I’ll be added to the Supplemental Complaint) background? He *must* have one of these modern agendas, no?

  • Guppy 2011.5.19 at 09:48 | Quote

    If this post isn’t referenced in a legal opinion within 10years, I will have lost all faith in the institution.

  • Jamison 2011.5.19 at 09:49 | Quote

    The complaint also displays an astonishing naivete about the nature of criminal defense. For example, Rakofsky seemed almost surprised that his client insisted on asking certain questions during the murder trial. Really? He wasn’t expecting this?

    Anticipating this, most criminal defense attorneys would have included a long talk with the client as part of trial preparations. If the client nevertheless persisted, thereby interfering with an effective cross-examination at trial, these attorneys would have simply exercised their authority to determine trial tactics. They would not have gone to the bar of the court to raise this directly with the judge.

  • K 2011.5.19 at 10:02 | Quote

    Sounds like the legal profession’s Bernard Shifman.

  • R 2011.5.19 at 10:40 | Quote

    I think there’s a method to the madness here: By filing this lawsuit, he can add “Defamation” to his experience!

  • SnowConan 2011.5.19 at 10:45 | Quote

    Just to nitpick on a small point: it’s “Thomson Reuters”, no “P” in “Thomson”

  • E.Strobes 2011.5.19 at 11:00 | Quote

    In the UK, rather than use Latin we would refer to Arkell v. Pressdram (1971):

    The plaintiff was the subject of an article relating to illicit payments, and the magazine had ample evidence to back up the article. Arkell’s lawyers wrote a letter which concluded: “His attitude to damages will be governed by the nature of your reply.” The magazine’s response was, in full: “We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell’s attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.”

  • Eric Turkewitz 2011.5.19 at 11:40 | Quote

    Just to nitpick on a small point: it’s “Thomson Reuters”, no “P” in “Thomson”

    Thanks. Fixed. Wonder if they’ll sue me…

  • Eric Turkewitz 2011.5.19 at 11:41 | Quote

    In the UK, rather than use Latin we would refer to Arkell v. Pressdram (1971):

    Not too shabby. I wonder how GSIAH will hold up…

  • Eric Turkewitz 2011.5.19 at 11:43 | Quote

    I think there’s a method to the madness here: By filing this lawsuit, he can add “Defamation” to his experience!

    Maybe we’ve all been had?

  • Russ DeMott 2011.5.19 at 12:52 | Quote

    Great post. I’m impressed with the Latin, too, being that I’m a country lawyer way down here in South Carolina. And as we say here, “that dog don’t hunt.” Best wishes dealing with this idiotic lawsuit. Keep up the good writing.

  • Katherine Hamilton 2011.5.19 at 13:07 | Quote

    In the picture, Mr. Rakofsky bears a striking resemblance to the character of Rodney Trotter in the British sitcom Only Fools and Horses. Their competence at lawyering is probably also roughly equal.

  • Joseph Dang 2011.5.19 at 13:20 | Quote

    Eric Turkewitz:
    I think there’s a method to the madness here: By filing this lawsuit, he can add “Defamation” to his experience!
    Maybe we’ve all been had?
    ReplyQuote

    “Participated in a defamation trial from the filing of the complaint through completion.”

  • Bruno 2011.5.19 at 17:12 | Quote

    You definitely deserved to be sued, but only for misspelling latin. ;) Kudos to Luigi.

  • The Old Wolf 2011.5.19 at 19:57 | Quote

    By the tufted ears of Mogg’s uncle! My estimation of lawyers just went up by an entire order of magnitude. Huge respect for the aliquot of common sense mixed with blistering humor!

  • Eric Turkewitz 2011.5.19 at 20:29 | Quote

    @Bruno

    You definitely deserved to be sued, but only for misspelling latin.

    Nonsense. L-a-t-i-n. I got it right.

  • Luigi de Guzman 2011.5.20 at 08:08 | Quote

    Any misspellings are my fault–I translated it. Should have been “aures tuas”, not “aures tuos.” Now, of course, the error has propagated itself across the Internet, and there’s no way to stop it. Maybe I could pull a Rakofsky and seek to enjoin people from using my misspelled translation?

  • Brett Emison 2011.5.20 at 15:59 | Quote

    Great post. Here, the truth (and fair comment) shall set you free!

  • joe 2011.5.22 at 23:04 | Quote

    “Irony”: Medmal lawyer gets offended by being named in “frivolous” lawsuit and blogs about it on personal blog. Something the doctor’s he sues won’t be doing.

    “hypocrisy”: Medmal lawyer blogs about a suit brought against him while two years previously lambasts a doctor for doing the same thing.

  • Eric Turkewitz 2011.5.23 at 07:27 | Quote

    @joe

    “Irony”: Medmal lawyer gets offended by being named in “frivolous” lawsuit and blogs about it on personal blog. Something the doctor’s he sues won’t be doing.

    So true. Doctors don’t make allegations of frivolous suits against me. I’ll let you figure out why.

    “hypocrisy”: Medmal lawyer blogs about a suit brought against him while two years previously lambasts a doctor for doing the same thing.

    The doc disclosed attorney-client privilege on his blog. I gave opinion on public story.

  • Eddie 2011.5.23 at 13:00 | Quote

    At least you have George Clooney playing you in the movie. Not sure who the guy is they picked to play Greenfield! For those wondering what I am talking about go here: http://biglegalbrain.com/2011/05/rakofsky-against-the-internet-the-movie/ and here: http://vimeo.com/24007367 for the movie trailers. Too funny.

  • M. 2011.5.24 at 04:39 | Quote

    Was gonna respond to Joe’s comment but knew you — Eric — would beat me to it. Let me add this, though, a clarification to the “tort reformer’s” rant: While not every med mal case is successful, a very low number of per se meritless cases are brought. Any lawyer who knows what they’re doing would bring a worthless case; not worth the time and the money. Too, it’s a rare sued doctor who can accept that they screwed up or, if they did, the victim is entitled to any compensation. (May I reference Mrs. Bruce Ratner, being a public figure and all, for one example?)

  • ChadKnowslaw 2011.5.26 at 01:21 | Quote

    When I was a little baby lawyer I was wise enough to know that I knew nothing. I asked questions, I watched, I learned, I respected the advice, opinions and sometimes harsh criticisms of those with more experience. Rakofsky exhibits such poor judgment, over and over again, that I believe he can never be rehabilitated enough to practice law. If the public is lucky, he will be disbarred, followed by an UPL complaint because he didn’t follow those rules either.

  • G Thompson 2011.5.26 at 03:58 | Quote

    For the last 40 years, there has been a standard response to law suits like what you have received by quoting the Reply in Arkell v. Pressdram (1971) [Found here with background here]

    You Sir have now replaced that response with “vade et caca in pilleum et ipse traheatur super aures tuos”

    The annals of law history will remember you fondly ;) *hears a crescendo of salutations and ‘we’re not worthy’ cries from lawyers/solicitors everywhere*

  • slander q. libel 2011.5.27 at 22:03 | Quote

    Apparently, Rakofsky not only went to law school, but is a recent graduate of the “Barbra Streisand School of Public Relations.”

  • Hans Poppe 2011.6.2 at 23:25 | Quote

    Great post, Eric. Unfortunately, I doubt the circus will be in town very long. I see a dismissal on the near horizon.
    hp

  • Ahmed Motiwala 2011.6.4 at 19:44 | Quote

    Great post! if a fool out of Touro can get a job, it give’s me some hope considering I’m just about to take the bar and enter this difficult legal market.

  • RFC3251 2011.6.9 at 15:49 | Quote

    “Vade et caca” would mean “go and shit” (two separate actions). In English you need to use “go” because there is no clear imperative form, but since “caca” is already the imperative form of “caco” / “cacare”, you don’t really need the “vade”.

    In other words, you can use just “caca” (then again, you might want to keep the “vade” to make sure he doesn’t do it close to you). Note that “caca” is not the noun (that would be “merda”). So, “In pilleum caca [...]” would be sufficient and probably sound better.

    Alternatively, you can use “vade cacare”, which is the (Latin translation of) the form used in most romance languages, but it doesn’t sound as posh.

    And a “pilleum” isn’t a knit hat, it’s a ceremonial felt cap (which makes it a pretty good translation).

  • Ron Stern 2011.6.9 at 20:35 | Quote

    Thanks for a great piece. Haven’t laughed that hard in a while.

  • Mike from Melbourne 2011.6.9 at 22:08 | Quote

    I’d have suggested to Mr Rakofsky that he read the reply given in Arkell v Pressdram.

  • BVC 2011.6.15 at 07:35 | Quote

    I am in Afghanistan. In between missions here, I spend much of my time reading the news. I thoroughly enjoyed your blog. Big smile the entire time I was reading it! :)
    Smart, witty, opinionated, dramatic… You could write a movie about this blog! Best of luck!

  • Eric Turkewitz 2011.6.15 at 07:42 | Quote

    I am in Afghanistan. In between missions here, I spend much of my time reading the news. I thoroughly enjoyed your blog. Big smile the entire time I was reading it!
    Smart, witty, opinionated, dramatic…

    Now we’re talking…just what you guys need…a personal injury blogger as part of a U.S.O. tour. Just put me next to the dancing girls.

    I know I speak on behalf of all my readers when I wish you all the best and a safe return to the U.S.

  • John Day 2011.6.15 at 21:46 | Quote

    Mr. Rakofsky’s conduct lends support for my belief that lawyers should be required to participate in a residency-type of program before being permitted to file a lawsuit on behalf of a client or otherwise appear in court. Law schools simply do not teach what one must know to file and litigate cases.

    Good luck with your case.

  • Conrad Saam 2011.7.6 at 18:55 | Quote

    Eric – Thought I’d let you know that I’ve moved on from Avvo – doing some research on Online Reputation Management Disasters and ran across this and couldn’t help but read. Well written. :)

    Be well,
    Conrad

  • anon 2011.7.22 at 11:08 | Quote

    Thanks for this summary. I just heard of thsi and wanted to know what it was about. Poor guy. you can’t sue the internets!

  • -Mona- 2011.8.4 at 22:01 | Quote

    Most entertaining! I took an early retirement from practicing some 10 yrs ago and have never regretted it.(Busy playing with grandsons and much happier for it!) Anyway, This entire sorry saga reminds me of why I hated my job, especially dim bulb opposing counsel w/ whom one could not reason.

    Lawyers blog all over the Intertubes, naming names and casting calumny; most, unlike Mr. Rakofsky, have a clear grasp of the 1st Am. (Whom I hereby label as a moron. Res ipsa, and all that. Will provide address for service upon request.)

  • Cats, not kids 2011.9.4 at 16:44 | Quote

    ‘All lawyers are educated. Our lawyers are prepared.’ – http://www.tourolaw.edu front page :|

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