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

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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.

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11 Responses Leave a comment

  • Rick Horowitz 2013.5.15 at 21:35 | Quote

    As often happens, I was too late to the party to be sued. Is it odd that I’m “bummed out” about not getting to be part of the lawsuit?

    Anyway, great job.

    And congrats on what I personally would consider the experience of a lifetime.

    AND on the fact that it’s finally over.

  • David Sugerman 2013.5.15 at 21:57 | Quote

    Respect and appreciation are your due. You and the legal team and the defendants handled yourselves well. The result is no surprise. But your efforts are the stuff that make me proud of what we do. Thank you.

  • thenambypamby 2013.5.15 at 22:44 | Quote

    Excuse my French, but F**K YEAH. This post makes me want to beat my chest and scream to the rafters that I am a lawyer. Great job. Great job representing the blogging community. Great job planting the flag in the first amendment.

    Did I mention great job?

  • Jeff Gamso 2013.5.15 at 23:01 | Quote

    I’ve never quite grasped the honor of having been sued by Rakofsky, but I certainly understood the need to fight back once I was. Joining my fellow defendants in standing for the First Amendment, now that’s an honor I grasped.

    I couldn’t have done better, or been prouder, than to have had you and Randazza in my corner doing the lifting.

    Thanks, Eric.

  • Anonymous Coward 2013.5.16 at 08:13 | Quote

    Came here two years ago to follow the Rakofsky story, stayed because the subject matter is fascinating in it’s own right. Turns out this is a great blog by an important voice, can’t wait to see where you go next!

    Congrats on the (inevitable but arduous) win!

  • Mark Draughn 2013.5.16 at 09:16 | Quote

    I was going through a slow patch on the blog at the time, so I didn’t post anything about Rakofsky’s infamously aborted trial, and then when it all blew up I felt like I was left out of the party all the cool kids were having. Then again, I’ve been involved in lawsuits before, and for the non-lawyers like me, it’s not as much fun as you make it sound like. Congratulations.

  • Eric Turkewitz 2013.5.16 at 09:43 | Quote

    Then again, I’ve been involved in lawsuits before, and for the non-lawyers like me, it’s not as much fun as you make it sound like.

    I hope I didn’t leave the impression it was fun. It wasn’t.

    A lot of people had a good laugh at the beginning, but the blunt reality is that it consumed way too many hours dealing with procedural matters that had nothing to do with the merits (or lack thereof). Not fun at all.

  • dan 2013.5.16 at 12:40 | Quote

    I am surprised the lack of sanctions doesn’t draw more criticism. If a doctor handled his professional responsibilities this way, or an engineer, wouldn’t the financial pain have been greater? Isn’t there a problem with a system that allows Rakovsky to impose such great costs on the people he sues, with no cost to himself?

  • Eric Turkewitz 2013.5.16 at 13:10 | Quote

    I am surprised the lack of sanctions doesn’t draw more criticism.

    Scott Greenfield wrote about that, and our judicial culture of great reluctance to award sanctions, and the fact that the judge may figure he’s been punished enough (site may take a minute to load):

    http://blog.simplejustice.us/2013/05/11/rakofsky-v-internet-case-dismissed.aspx

  • Legal Man 2013.5.17 at 09:39 | Quote

    Eric

    If you really want to stick it to Rakofsky, all of the defense attorneys should file separate bills of costs against him as part of the final judgment. What are the chances that he will pay the judgment? All those statutory costs and disbursements add up. It would be a nice going away present to Rakofsky!

  • Old Geezer 2013.5.24 at 06:23 | Quote

    “a profusion of popcorn eating armchair pundits”

    Guilty, your honor, but if it please the court, in my defense may I point out that this was a heck of a show and I shall wear my orange jumpsuit and plastic wrist ties as badges of honor as I am led up to the gallows.

    Look at the spent time this way — this blog, like many others I read, is at bottom a book manuscript-in-process and this episode will constitute some of the best chapters. No time well spent is ever truly wasted.

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