Archive for the ‘Frivolous Claims’ Category

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.

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.

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.

Documents:

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

 

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 frivlous?  Dave checks out a few of them…

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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.

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

Sanctions in New York for Frivolous Suit

In this decision in today’s New York Law Journal (free reg.), Justice Catherine Bartlett, sitting in Orange County, does an exploration of sanctions in New York, and the availability of legal fee recoupment for a frivolous case. Tort “reform” critics like to complain that frivolous suits are a reason that restrictions should be put on suits, such as a loser pays type of system, though this obviously impacts legitimate suits as well.

But here we see the system in action: In Seeley v. Emerald Point the plaintiff was clobbered from behind with a shovel while in the parking lot of the Emerald Point bar.  But one of the defendants was an individual that the plaintiff simply couldn’t tie to the assault, no matter how hard he tried. As summarized by the court:

Plaintiff settled his claim as against Emerald Point and pursues an action against the remaining defendants, one of which is Sean Frey, who plaintiff alleges assisted in his assault. At no time has plaintiff been able to identify Mr. Frey as his attacker, and no witness testified or came forward demonstrating that Mr. Frey was in any way connected with the attack on Mr. Seeley. In fact, Mr. Frey claims that while he was present at the bar that evening, he had no involvement whatsoever in any assault. Mr. Frey testified that he was not employed or in any way connected with Emerald Point other than as a patron.

The Court didn’t just toss the suit against Mr. Frey, but when on to excoriate the suit against him, and discussed the two standards for punitive sanctions in New York; one is a Rule of Court (for frivolous conduct) and the other legislatively derived (for frivolous suits).  This is a long block quote, which generally sucks in a blog posting. But  for practitioners (and policy makers), this is how it works in New York (I’ve reformatted/removed the citations to make it more readable):

Turning to the issue of costs and sanctions, the Court notes that conduct is frivolous and can be sanctioned under 22 NYCRR 130-1.1 if it is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” or it is “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (see Stow v Stow, Matter of Gordon v Marrone, Tyree Bros. Envtl. Servs. v Ferguson Propeller, all in the 2nd Dept.). “Making claims of colorable merit can constitute frivolous conduct within the meaning of 22 NYCRR 130-1.1 if ‘undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another’.” Specifically, Section 130-1.1 of the Rules of the Chief Administrator of the Courts states in pertinent part:

(a) The court, in its discretion, may award to any party in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part.

(c) For the purposes of this Part, conduct is frivolous if:

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

As expressed in Park Health Center v Country Wide Ins. Co., (N.Y.City Civ.Ct.,2003):

“In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis for the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” ( Id.) [22 NYCRR 130-1.1(c)].

While the factors listed above are precatory in determining sanctionable conduct, “what remedy [to impose] is dictated by considerations of fairness and equity.” (Levy v. Carol Management Corp. 1st Dept.). Moreover, “[s]anctions are retributive in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics. citation omitted” (Levy,). The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party’s conduct and prejudice to the adversary. ( See Vicom v. Silverwood, 4th Dept.).

In the instant case, it is clear from the submissions that the evidence demonstrated that Mr. Frey had no connection with the assault on plaintiff. Mr. Seeley never identified his attacker, and the evidence, which is unrefuted, demonstrates that Frey was not employed by Emerald Point nor did he participate in any assault. Plaintiffs were given multiple opportunities to discontinue the action against Frey, even in light of the compelling evidence demonstrating his non-participation. Plaintiffs failed to do so, and such conduct can be construed as nothing less than frivolous conduct. Plaintiffs’ counsel’s conduct in this matter demonstrates a repeated disregard for proper procedure and the law, and as such, plaintiffs’ conduct is frivolous.

CPLR 8303-a calls for the award of “costs and reasonable attorney’s fees not exceeding ten thousand dollars” against a party, his attorney, or both, who are found to have brought a frivolous action in bad faith or as a means of “harass[ing]” the successful adversary. A similar alternate imposition of costs and financial sanctions is available under the Rules of the Chief Administrator of the Courts for frivolous conduct in pursuit of such litigation (22 NYCRR Subpart 130-1). Once there is a finding of frivolousness, sanction is mandatory ( Grasso v. Mathew, 164 A.D.2d 476, 564 N.Y.S.2d 576, lv. denied), especially in the wake of frivolous defamation litigation (Mitchell v. Herald Co., 137 A.D.2d 213, 529 N.Y.S.2d 602, appeal dismissed). Nyitray v New York Athletic Club in City of New York, 1st Dept., 2000).

The Court hereby directs that a hearing shall be held on September 8, 2011 at 9:30 a.m. at Orange County Government Center, Courtroom #4 for the purposes of taking testimony to ascertain the time and expenses of defendant Frey in defending this action and reasonable attorney’s fees.

It would be nice, of course, to one day find a decision where a judge sanctions a defendant for frivolous defenses. Perhaps that day will come.

Rakofsky Motion #10: Washington City Paper Moves to Dismiss

The Washington City Paper, a freebie delivered around the streets of our nation’s capitol, is also a defendant in the Joseph Rakofsky defamation case. They published this article on April 4th about the mistrial, written by Rend Smith.

The paper is represented by the same attorneys as Jeanne O’Halleran, that being James Rosenfeld and Samuel Bayard of Davis Wright Tremaine.

Note that I do not publish all documents, since so many are redundant. There is no need to publish, for example, an attorney’s affirmation that merely attaches a copy of the Amended Complaint and other previously published documents in every one of these posts. Readers can use the Joseph Rakofsky category link to find documents that they might not see here.

Also, please note that since I became local counsel to many of the defendants, I’ve elected not to add substantive commentary. But the papers are made available here due to the widespread interest in the case.

Documents:

Rend Smith Affidavit

Amy Austin Affidavit

Talmadge Bailey Affidavit

Memo of Law

Rakofsky Motion #9: O’Halleran Motion to Dismiss (Updated)

Yesterday we saw motion #8, the Washington Post‘s motion to dismiss the Joseph Rakofsky defamation case. Now today we see #9, regarding defendant Jeanne O’Halleran, a Georgia attorney, who was swept into this mess because she posted about this story on a local Georgia forum. She is represented by James Rosenfeld and Samuel Bayard of Davis Wright Tremaine.

Also, note that there are two new exhibits that have not been filed before:  Exhibit B is the court proceedings from the day before the mistrial when defendant Deaner asks for a new lawyer. And Exhibit D, which is the motion of investigator Adrian Bean that includes commentary the “trick” email that the Washington Post subsequently published.

Documents:

O’Halleran Affidavit

Memo of Law

Exh B – March 31 Proceedings

Exh D – InvesigatorMotion

Update 6/25/12: O’Halleran Reply Memo: O’Halleran Reply Memo

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)

An “Elective” Amputation?

The stories are legion of frivolous claims brought by plaintiffs. And one of the things I should be doing more of, is showing that defense lawyers are capable of equally frivolous conduct. Today will be one of those days.

In this labor law case decided today (Cullen v. Makely) by the Appellate Division (Third Department), a scaffold collapses and a laborer’s leg gets crushed and needs to be amputated. The guy sues the owner of the property. The property owner then turns around and brings a third party action against the guy’s employer for indemnification (if we lose, you give us the money back, because you’re the ones that rigged the bum scaffold). The owner (defendant) makes a motion for summary judgment on that issue against the employer (third party defendant).

In order to prevail on this indemnification claim, however, the property owner must prove a “grave injury” under our Worker’s Compensation law, which as it happens, includes “amputation of an arm, leg, hand or foot.” Pretty clear cut, right? Especially since it was supported “plaintiff’s medical records and an affidavit from his treating physician who opined, with a reasonable degree of medical certainty, that the amputation he performed was due to plaintiff’s chronic pain and disability primarily resulting from his work-related traumatic accident, superimposed on a childhood injury.”

Rather than concede defeat, the poor defense lawyer raises this defense: The amputation was elective. Really. S/he did do that. Don’t take my word for it though, listen to the court:

In response, third-party defendants relied upon their attorney’s affidavit alleging that the amputation was elective and was not caused by the work accident, but was necessary because of plaintiff’s prior leg injuries arising from an accident approximately 30 years earlier when, at the age of five, he was run over by a truck. That affidavit, which lacked any competent medical evidence and contained only unsupported allegations in an attempt to create issues of fact, was insufficient to rebut the medical opinion of plaintiff’s physician.

Is there anyone in this world who thinks a construction worker would electively have his own leg amputated? Or that any doctors would violate their Hippocratic Oath in order to do it? (OK, maybe this one, but I mean normal doctors.)

What’s really amazing is that after the third-party defendant, the employer,  lost in the court below, someone actually thought they could prevail on an appeal.

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