March 10th, 2016

Thank You, Donald Trump!

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

Thank you Donald Trump!!! For you did the Constitution and the First Amendment a tremendous service.

You exposed for the entire nation that there are people out there that wish to shut down free speech, and that some are willing to abuse the courts in order to accomplish that goal. Specifically, you exposed that there are some that will bring utterly frivolous defamation suits for the purpose of curtailing criticism, otherwise known as chilling free speech.

As someone that has been twice sued for defamation, and argued in an op-ed that New York needs robust Anti-SLAPP legislation, we can fairly say the issue is dear to my heart.

You did this, Donald Trump. And I am not referring to your recent tirade where you promised to “open up” libel laws which you promised to change if you’re elected president, despite the fact that the president doesn’t hold such power.

No, your service came in comment you made over someone who had sued a reporter over an investigation of the net worth of a loud mouthed real estate developer who was claiming to be worth 5-6 billion when the reporter, Timothy L. O’Brien, said the guy was worth “only” 150M and 250M.

I know! Could you believe someone would bring such a moronic suit!

And to juice his net worth in defense of himself, you wouldn’t believe that the developer actually claimed his net worth varied based on his “feelings” (emphasis added):

Q. Let me just understand that a little bit. Let’s talk about net worth for a second. You said that the net worth goes up and down based upon your own feelings?

A. Yes, even my own feelings, as to where the world is, where the world is going, and that can change rapidly from day to day. Then you have a September 11th, and you don’t feel so good about yourself and you don’t feel so good about the world and you don’t feel so good about New York City. Then you have a year later, and the city is as hot as a pistol. Even months after that it was a different feeling. So yeah, even my own feelings affect my value to myself.

Q. When you publicly state what you’re worth, what do you base that number on?

A. I would say it’s my general attitude at the time that the question may be asked. And as I say, it varies.

Here is what the bellicose developer said about the suit that he brought despite knowing he would lose:

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

Yes, Trump, we are talking about you. As if anyone reading this couldn’t have already figured that out.

Your confession published yesterday that you abuse the courts in an attempt to silence critics will no doubt be a nice little weapon in the gun belt of First Amendment defense, and will hopefully go a long way to make sure that such things don’t happen —  by raising awareness of the issue and the way you abuse the courts.

Perhaps our legislators will take notice, as it pertains to the pending anti-SLAPP legislation.

And if there are any judges that happen to be reading this, this is why you shouldn’t be gun-shy with the sanctions when idiotic defamation cases are brought. If you would lower the hammer on vexatious litigants, you would see fewer patently frivolous suits, and proper speech protections for the citizenry.

Here’s a suggestion for the next worthless defamation suit Trump brings: Take his demand for damages — which will be a ludicrous amount — and use that as the barometer for sanctions.

See also:

 

December 8th, 2015

Can Trump Claim His Campaign Was A Hoax?

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

Donald Trump speaks at the 2015 Conservative Political Action Conference (CPAC) at the Gaylord National Resort & Convention Center at National Harbor MD on February 27, 2015. (Photo by Jeff Malet)

When I first saw the news that Donald Trump wanted to ban all Muslims from coming to America (“a total and complete shutdown“), I scratched my head.

Was this a parody or the real thing? As he utters more and more outrageous and bigoted comments, it becomes difficult to know.

But the bigger issue, lurking in the backs of many minds, was this: Will Trump claim one day that his whole campaign was an elaborate hoax, concocted to expose the bigotry and racism of others?

Or, perhaps, as some have said, this is a “false flag” campaign to help Hillary Clinton.

These related ideas seem to be far more reasonable at this point, than this being an actual campaign to become president. Because other than the overt Archie Bunker bigots, there isn’t anyone else that would vote for him.

Would anyone really be surprised if he turned around one day and said, “Ha! The joke’s on you!  Look at all those extremists out there that I have uncovered!”  (Always done with exclamation marks, of course.)

The problem is that, if he tries it, he runs headlong into an altogether different problem. In federal court. Where judges might not find the humor in what he claims he had done.

Remember, if you will, that in July Trump filed a $500M defamation and breach of contract lawsuit against Univision, a Spanish language station. The station dumped Trump’s Miss USA and Miss Universe contests, after his comments about Mexicans being rapists.

That case was then removed from New York’s state court to federal court where a motion to dismiss by Univision is now pending.

So what happens if Trump tries to claim that his campaign was just a giant ruse to expose the ugly underbelly of American bigotry and racism? Or that he deliberately mocked the worst part of the Republican base with his bigoted comments to help Hillary? It means he will have effectively conceded that, by bringing the lawsuit, he had committed a fraud on the court.

And you know what? Judges don’t like to see their courts used in that fashion.

While the sanctions of case dismissal and legal fees may be a drop in the bucket at this early point in that litigation, courts retain an inherent power to police themselves. And that inherent power includes the imposition of sanctions for bad-faith conduct, which is not displaced or limited by any particular sanction scheme set forth by statutes and rules. (See Chambers v, NASCO).

The sanctions could also affect his lawyers for having perpetuated a charade on the court. And not just monetary ones, but disciplinary ones. Which lawyers want to risk their licenses for Trump?

And since he is involved in dozens of other lawsuits, there could be fallout there, as he would have acknowledged dishonesty not just out of court with the hoax, but in court as well. Pulling a joke or hoax to prove a point may well be a fair thing to do, but  you can’t involve the courts. Trump, after all, signed the verification to his lawsuit.

So Trump, it seems, doesn’t really have an escape hatch from his bigotry. If he tries to claim it was all a joke, he (and his lawyers) will likely have a very mad judiciary to deal with. And they may not give a damn about confining themselves to the limited amount in legal fees already wasted. If he tries to do this, will a judge decide to test the limits of the power to sanction?

 

July 17th, 2014

Motion to Dismiss/Sanction Against Dr. Michael Katz

DrMicheaelKatz-Pinocchio

This is what Justice Duane Hart thinks of Dr. Michael Katz

Remember how I reported that I’d been sued again for defamation? Justice Duane Hart in Queens had ripped Dr. Michael Katz a new one in open court for acting like Pinocchio. And the good doctor, not being able to sue the judge for calling him a “liar” about 25 times or so, figured he would sue me instead for reporting it. (Shooting the Messenger (I’ve Been Sued Again))

Both Scott Greenfield (Turkewitz Sued By “Liar” Doctor, Michael Katz) and Marc Randazza (Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It) mocked the lawsuit.

Well, the motion to dismiss was filed this morning. And with it, the motion for sanctions. Against both the doctor and the lawyers who drafted this misbegotten, ill-advised, mongrel of a suit destined for the trash heap of history.

Having sued me on five separate causes of action, the memo runs a bit long. But this is the lede from the Memo of Law:

Last year Justice Duane Hart in Queens made numerous acidic comments about well-known defense orthopedist Michael J. Katz, calling him a liar at least 25 times (among other things). Eric Turkewitz reported on these extraordinary court proceedings on his law blog. Since Katz can’t sue the judge, he sued Turkewitz instead for reporting on what the judge said, claiming defamation, as well as a kitchen sink of other claims based on the exact same protected conduct. Not only must the case be dismissed since such reportage is absolutely protected by the law, but sanctions should be imposed against the plaintiffs for each of the clearly frivolous claims.

Part of that kitchen sink of claims that were alleged, to act as a bastard surrogate for defamation, is prima facie tort. About this, the brief says:

Prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It is not a catch-all alternative for every grievance, annoyance, gripe and squawk  that is not independently viable.  There is no cause of action for saying mean things about someone on the Internet. Not in this country.

For those that care about the sanctions part, and what it means in New York, the brief gets there at page 28 after deconstructing each of the causes of action, and includes this piece:

It is important to note that the CPLR sanctions are set at $10,000 per prevailing party and each individual claim.  For the purposes of this matter, there are two plaintiffs and two defendants and five frivolous claims, thus subjecting the plaintiffs to as much as $200,000 in costs under CPLR 8303-a.  A long analysis of this subject was done by Justice Lebedeff in In Re Entertainment Partners Group, Inc. v. Davis,.

The complaint he filed is here, where Katz confesses in exquisite and meticulous fashion about the judicial reaming he got. You’ll find it on pages 15-30. Yeah, you read that right, it took him 15 pages to describe all the times he was called a liar.

Having confessed, conceded, declared, attested and otherwise sung to the world that Justice Katz did, in fact, call him a liar, it is remarkable that any lawyer would take this matter and sue me for reporting on what happened in court. Any lawyer worth a damn knows the suit is empty, which means to me that the only logical reason it could have been taken is either because Katz offered the firm enough money to do so, or Katz is a friend/relative of someone at the firm. But friends don’t let friends file frivolous suits.

Which is why the most important word a lawyer needs to know is “no.” Placing your client, and yourself, in the line of fire for sanctions is, as we say in legalese, an ill-considered, imprudent, insane, misguided, half-baked, bird-brained, blockheaded, short-sighted and otherwise dumb-ass thing to do. I’ve said this before my friends, and I’ll say it again: I have a thesaurus and I’m not afraid to use it.

For those that care about such things, this is the transcript of the original testimony on April 12 2013.

The transcript of the July 1st proceeding is here.

The transcript of the July 8th proceeding is here.

A supporting affidavit from my counsel is here.

The video of the one minute and 56 second exam that Katz did was up on YouTube, but YouTube took it down, despite it being part of a legal proceeding.
——————

 

May 15th, 2013

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

spotlight_r

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.