Declarations and Exclusions

Blawg Review #315

Welcome to Blawg Review #315, the initial Monday edition of the resurgent Blawg Review, the weekly blog carnival for everyone interested in the law. 

Launched originally in April 2005, and overseen by the still-anonymous Editor, Blawg Review ranged about across the legal blogging landscape, appearing each Monday in a new and different exotic locale for the next six years before seemingly going silent following its 314th edition this past August.

It has been my privilege to host Blawg Review here at Decs&Excs on five prior occasions, beginning with Blawg Review #51. Since April 1, 2006, I have also hosted a series of April Fools' extra editions, in the same week as the Decs&Excs editions, on my personal/cultural blog, a fool in the forest. Yesterday, as an amuse bouche in preparation for today's edition, I posted yet another, the Blawg Review #315 April Fools' Prequel.

While the original installments of Blawg Review were simple collections of links to the prior week's best or most interesting or most curious legal blogging, it early on became common, albeit never mandatory, for each host to adopt a Theme for his or her presentation. In 2011 and again this week, I constructed the April Fools' edition around a reworking of lyrics from Gilbert & Sullivan. The creation of the thing required no little energy expenditure, so as I turned my attention to crafting this post, I found my thematic inspiration swiftly ebbing.

"Whatever shall I do?" said I to myself. "I have a good quantity of top grade links to share, but no proper idea of how to present them most entertainingly. Perhaps I should just hark back to the distant origins of Blawg Review and just list them out with a remark or two? A sort of 'plain vanilla' approach, perhaps?"

And then, as if a lightbulb had incandesced in an environmentally friendly manner above my head, it came to me....

BLAWG REVIEW #315 - THE PLAIN VANILLA EDITION

The use of the seed pods of the orchid Vanilla planifolia as a flavoring can be traced to pre-Columbian Mexico, where it developed among the Totonac people in the region that is now Veracruz. The Totonac were conquered by the Aztec, who promptly developed a taste for vanilla themselves and who had large quantities of the stuff transported to their capitol at Tenochtitlan as tribute from the subjugated Totonac. The Aztec, in their turn, fell to the invading Spanish and the European fondness for vanilla was born, eventually spreading throughout the world.

Legendary versions of vanilla's origins come to us from the Totonac people, and exist in both kissy-cuddly and blood-soaked versions. Chacun à son goût, as the Totonac used to say, albeit they said it in Totonac. The tale is commemorated by a statue in Papantla, Veracruz:

It's a nice legend, as they say, and rather more romantic than simply attributing vanilla's attractive qualities to millions of years of fortunate natural selection.

Now, you may be asking yourself what tasty vanilla might have to do with the law. To which question, my answer is in two parts.

First, when one is going about theming a Blawg Review, it is never a requirement that the theme actually relate to the subject at hand.

Second, the contemporary practice of law in the United States is conducted largely in non-traditional environs, often with the use of sophisticated and highly mobile technologies. No longer tethered to a desk, a land line, a fax machine, or the material world, the contemporary lawyer is freed to commune with the delightful by products of V. planifolia whilst still practicing law. 

And on that refreshing note, how about some links?

Criminal defense blogs have for some time been producing much of the best in legal blogging. A few choice examples:

• Mirriam Seddiq meditated on "Innocence" and the eternal question whether its presence or absence does or should make any difference to a criminal defender.
   
• Unwashed Advocate Eric Mayer brought his experience in military justice to bear with an "Azimuth Check: Getting Tough On Military Sexual Assault"
   
• The U.S. Supreme Court recently determined, with much snarling in dissent by Justice Scalia, that the right to effective assistance of counsel must apply to certain aspects of the plea bargaining process. Among the CrimBloggers weighing in on that decision were Rick Horowitz ("Such a Deal!"); the pseudonymous Gideon of a public defender ("To Plead or Not to Plead: a critical question"); and Scott Greenfield ("Please Plea(se) Me").

Somewhat related: from Santa Clara Law prof Kyle Graham, "Advice for Interviewing for a Prosecutor Position"

The dominant criminal law story in the public eye this past week was the continuing investigation in to the investigation in to the shooting of Trayvon Martin in Sanford, Florida. No surprise, it generated plentiful commentary in the blawgosphere. A few examples: 

• Florida's own Brian Tannebaum points out that "Stand Your Ground" has consequences of many kinds extending far beyond this incident: "Unintended Consequences, Again"
   
• A more professorial take from Michael Mannheimer: "Trayvon Martin and Florida's 'Stand Your Ground' Law"
   
• Two from defense attorney turned appellate judiciary candidate Mark Bennett: "Trayvon Martin: Strange Bedfellows" and "Trayvon Martin: A Little Florida Law"
   
• And of course, no discussion of anything in this country is complete without looking into the Intellectual Property angle. Above the Law is happy to oblige: "Trayvon Trademark? An ATL Debate".

The U.S. Supreme Court heard argument over the course of three days on the constitutional legitimacy of the health care/insurance reform edifice erected by the Affordable Care Act. Insights in to the difficult and sophisticated legal issues tended to be drowned out by the political commentary, horserace -style handicapping,  and a flood of arrant nonsense. As a palliative, a selection of some of the more nuanced analysis around the blawgosphere:

• Three examples out of, perhaps, dozens in the comprehensive coverage at SCOTUSBlog: Amy Howe ("Today’s argument in Plain English: Will the mandate squeak by?"); Lyle Denniston ("Argument recap: Moving on to the mandate (FINAL UPDATE)"); and Tom Goldstein ("A tale of two great arguments").
   
• Edward Hartnett at Concurring Opinions considered Justice Anthony Kennedy as the particular target of the argument and briefing by anti-ACA advocate Paul Clement: "Paul Clement and Justice Kennedy"
   
• Tom Smith of The Right Coast perceives the ACA structure as "An insurance scheme that is not insurance paid for by penalties that are not penalties" 

A related link, via the Twitter:

RT @APribetic RT @carlgardner Written constitutions: a warning from America bit.ly/HmhGuX | I for 1 prefer my legislators trammelled.

— George Wallace (@foolintheforest) March 28, 2012

Keith Lee's An Associate's Mind has been expanding its offerings recently to include timely, well-made videos. This past week Keith delved into the collision of the personal and impersonal with "GPS, Drones, and Your Coming Complete Lack of Privacy in Public."

[This space was almost occupied by links to a story that I have convinced myself was/is an April Fools' prank not of my making. If it proves to be real—which I suppose is possible in this ever-changing world in which we're living—you'll all know about it next week, and I will confess my doubts were misplaced.]

[Update 0725 PDT: My instincts have proven to be correct on this one. Hoaxing mastermind Eric Turkewitz explains all here.]

Expert witnesses, their credibilty, and attempts to end-run causations were under consideration by John J. Sullivan at the Drug and Device Law Blog: "Any Exposure ≠ Enough Exposure"

That law school favorite, the peppercorn as a unit of compensation, earns a mention from Brett Trout at BlawgIT: "Judge Rules Bloggers Do Not Have to Be Paid". A vanilla bean would be equally acceptable as a metaphor.

The Founders' intent: did it include extra cheese?

And to conclude our catalog: Jamison Koehler wants to talk to you about your shoes.

Wait a moment, one more: there is an ample repository of excellent links to be found here. But for that guy getting to them first, I would have included them above.

And now, a look in to the Future:

Blawg Review #316 is scheduled to be hosted by Jamison Koehler, supra, at the Koehler Law Blog. This week and every week, Blawg Review HQ has information about future hosts and how you can become a host, and instructions on how to get your own blawg posts considered in upcoming editions.

~~~

All illustrations via Wikimedia commons, used in the expectation that they are either in the public domain or otherwise licensed for this use.

Marc Randazza: The Mark of Excellence

You will recall, perhaps, that I am a defendant in The Litigation Commonly Known as Rakofsky v. Internet. I have not posted updates on the case since last October, principally because the case was subject to a stay order. With the stay in place, there weren't much of nuthin' happening in the case. The stay expired on March 9 and, like maple sap in spring, the motion filings have started to flow again. The updates will start flowing again soon as well.

Today, as play resumes in Rakofsky, I want to take the opportunity to acknowledge the lawyer leading my defense, and the defense of more than thirty other defendants, most of them blawgers, in the Rakofsky litigation: Marc Randazza.

I had heard of Marc Randazza prior to being named as a Rakofsky defendant, but I had never had any contact with him. His presence and reputation were known to me through his blog, The Legal Satyricon, and through the blogging of others, such as Scott Greenfield or Ken-at-Popehat who know him firsthand.

Marc Randazza is a zealot, but a zealot of the best kind. His zealotry finds its focus in the First Amendment, and particularly the portions of that Amendment protecting freedom of speech and expression. Speech, without regard to its couth, its coarseness, its wisdom, its dunderheadedness, its cultural value, its tendency to discomfit or offend, is embraced by the First Amendment, and Marc Randazza has devoted his career to its preservation. Like Horatius at the bridge, Marc Randazza stands beside the Sluice of Speech to defend it and to see that its flow stays as wide and as free and as indiscriminate as possible.

What do we burn, apart from witches? More witches! What must we defend, apart from speech? More Speech!

Marc Randazza sees the Rakofsky suit, and far too many like it, as an attempt to pervert the power of law to the cause of stifling speech. He leapt, almost unbidden, to the defense of the Rakofsky blawgers in need of representation. With able assistance from Jay DeVoy of Randazza Legal Group and of our ace local counsel in New York, Eric Turkewitz, Marc Randazza is doing what is needful for me and for all of his other clients.

Marc Randazza has my back, and my back joins the rest of me in being grateful for it.

He is the man.

Thanks, man.

Due Process for Beginners

AG Holder: Assassination is unlawful. We decided these killings are lawful. Ergo they are not assassinations. Q.E.D. bit.ly/AjR13a

— George Wallace (@foolintheforest) March 5, 2012

Earlier this week, U.S. Attorney General Eric Holder used the occasion of a speech to students at Northwestern University Law School—a few miles up the lake shore from the University of Chicago, at which the now-President of the United States once taught constitutional law—to talk about and to attempt to explain and justify the Administration's claim of legal authority—as opposed to moral authority, or the authority that comes from having the raw power to do as it may please—to kill, unilaterally, American citizens. The Attorney General talked about a number of related topics as well—the prepared text of his remarks is here—but it is his discussion of Due Process of Law that has been bothering me in particular.

I am partial to Due Process. Personally, I think that the articulation of that particular principle is one of the greatest favors the Founders did for the nation in crafting the Bill of Rights. I also think that the version of Due Process articulated by the Attorney General turns that principle entirely on its head, then gives it a good shake to see if any loose change will fall out.

For the benefit of those who do not walk about day to day focusing on the structure and meaning of the Constitution—and honestly, even most lawyers have no cause to do that on a daily basis—here is an admittedly super-simplified summary of the law of Due Process and the ways in which it does not mean what the Attorney General and the Administration want us to think it means.

"Due Process of Law" comes to us via the Fifth Amendment, a jam-packed little amendment that has a great deal of substance stuffed in to its 108 words. Its best known element, the thing we mean when we speak of "taking the Fifth," is the prohibition on compelled self-incrimination, but there is a lot more to "the Fifth" than that. As with most of the Bill of Rights, the Fifth Amendment describes things that the federal Government cannot do, or can do only conditionally. Here is the whole thing, with the fifteen words that particularly concern us emphasized for the sake of emphasis: 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

You might note, if you were in a noting mood, that the Amendment refers to the rights of "persons" generally, not only those persons who happen to be citizens of these United States. We will concern ourselves here with citizens, because "citizens" is the bare minimum of humanity entitled to consider itself among the "persons" entitled to the protections of The Fifth.

So then, what can your government do and when can it do it? It can deprive you, citizen, of your life, or of your liberty, or of your property. However, in order to deprive you of any of those things, the government must provide "due process of law."

And what is this "due process" of which the Amendment speaks? Risking tautology, we can say that it is the "process"—the procedures, the what, where, when and under which rules things are done —that is "due"—that is appropriate to the case or that, more importantly, is owing to the citizen whose life, liberty or property the government proposes to take. That last is important: due process of law is an obligation owed by the government to the person the government is going to deprive, not vice versa. Due process is not a game of solitaire; the government cannot play it alone.

The law surrounding due process has grown up around two central questions: First, is a particular government action one of the deprivations covered by the amendment, does it involve an interest that we can characterize as involving "life" or "property" or the particularly elusive "liberty"? If not, there is no need to move to the second question, the eternal question: "What process is due?"

The ne plus ultra of process that may be due is a full trial, in a court, with all of the procedural and evidentiary processes that that entails. And, in many cases, that is exactly what is required. But not in all. There are any number of impositions that the government is permitted without a full-on judicial process. For example, in the case of Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court concluded that a full evidentiary hearing is not required before terminating disability benefits (a property right) under the Social Security Act. The "process that was due" in that case was for the government to provide notification to the recipient, a statement of reasons why he was being deemed ineligible, and an opportunity to contest the decision through administrative processes after the benefits were withdrawn. (That's right: sometimes the process that is due is to mire the citizen in bureaucracy for a few years. But I digress.)

The basic rule of thumb is: the more important the thing the government proposes to take, the more elaborate the process that must be followed before the government can take it. This is one of the reasons why there are so many layers of trial, review, appeal, re-review, and so on, attendant to the administration of the death penalty: the action of the State in taking your life is so extreme, and so irremediable, that the most elaborate process is due before the final blow may be struck. Death, as a general matter, requires more process, not less, before it can be meted out.

In the majority opinion by Justice Powell, Mathews v. Eldridge states in simple terms the bare minimum process that may be due in any given case. No student paying the slightest attention in a Constitutional Law class can fail to emerge without this embedded in the brain: Due Process, at the most basic level, requires notice to the one whose interests will be impaired and a meaningful opportunity to be heard, at an appropriate time and place, as to why that impairment should not occur or why it should be set aside. Justice Powell:

The essence of due process is the requirement that 'a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.' Joint Anti-Fascist Comm. v. McGrath, 341 U.S., at 171-172, 71 S.Ct., at 649. (Frankfurter, J., concurring).

Mathews v. Eldridge, 424 U.S. 319, 348-49.

In his Northwestern speech, justifying the White House process of targeted killing based on closed door consultation with itself, the Attorney General said this:

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

That last sentence is true—not every Constitutionally sufficient process requires that a court be involved—but it is also a dodge. Whether a court is involved or not, Due Process of Law requires some equivalent to the protections that a judicial process provides: a legally cognizable procedure that includes notice and an opportunity to be heard and in which the targeted citizen is a participant. Secret decisions, with secret participants examining (or claiming to have examined) evidence of unknown nature and provenance and applying undisclosed rules of decision, certainly constitute a sort of "process", but that process is the polar opposite of due process. In truth, it is a process designed to eliminate or evade the most basic protections of a citizen in a circumstance—imposition of a sentence of death—in which those protections should be heightened.

I tend to believe that the President, the Attorney General, and many more surrounding them are smart enough, and have the relevant training, to know perfectly well that due process has left the building in these cases. A very large portion of the population, likely even a majority, are entirely at ease with that: why, they ask sincerely, should we coddle evildoers by suggesting that they have constitutional rights at all? They're evildoers and deserve whatever they get, however they get it, right? Sentence first, verdict after!

Perhaps the President and the Attorney General are at ease with that as well, but I doubt it.

If they were truly untroubled by the proposition that "national security" is a universal constitutional solvent, and that no process is due before a surgical strike excises a presumed bad guy far from an actual battlefield, in a nation with which we are not at war and that is not under U.S. occupation, then why feel any compulsion to give a speech, as the Attorney General has done, erecting the semblance of due process? As Westley remarks to Count Rugen in The Princess Bride: "We are men of action, lies do not become us." If it is the position of this Administration that no process is due, the administration should just say so. Own it! and let history judge whether doing so is an act of courage or a semi-despotic "tearing up of the Constitution."

At this point, the perceptive reader will long since have deduced which of those this blawger thinks it is.

~~~

For further reading: Our Great Nation's busiest recovering blawger, Scott Greenfield, offered his own more cogent thoughts on this subject earlier this morning. As a criminal defense lawyer, he really does think about the Constitution and the Bill of Rights on a daily basis, so his opinions on such things are not to be sniffed at. Thanks to him for including the link to the Attorney General's full remarks, included at the outset of this post.

Let's Get Small

Mainstream legal reporting has its moments of accuracy, but also tends to be liberally larded through with misstatement, omission and dollops of authentic nonsense, especially when the report claims to have uncovered a burgeoning "trend." The Los Angeles Times succumbs to the hazards of the course today—on Page One, no less—as it ventures into the mysterious realms of the Small Claims Court and consumer class action law in a garbled story that seems to be about the former but that is really more concerned with the latter.

The Times pegs its report to a dispute between "angry consumer" Heather Peters and Honda Motor Company:

The Los Angeles resident is miffed that her 2006 Honda Civic hybrid doesn't get its claimed fuel economy. And she isn't satisfied with a proposed class-action lawsuit settlement that would give trial lawyers $8.5 million while Civic owners would get as little as $100 and rebate coupons for the purchase of a new vehicle.

But Peters believes that she found a venue where she can win justice and where Honda can't spend a single dollar on legal help.

On Jan. 3 she'll take her case to Small Claims Court in Torrance, where California law prohibits Honda from bringing an attorney. She's asking for the maximum of $10,000 to compensate her for spending much more on gasoline than expected. Honda said the Civic would get about 50 miles per gallon, but because of technical problems the car gets closer to 30 mpg.

By way of background: in California, the Small Claims Court exists as a division within the larger Superior Court. (Other jurisdictions, of course, have equivalent institutions, but California is the focus of the Times story, and of this blog.) The purpose of Small Claims Court is to take disputes involving relatively small amounts of money out of the more formal judicial system, in the hope that the claims can be resolved more quickly and at less expense than in a full-scale court case. A Small Claims case can often be concluded within weeks of filing, rather than the months or years entailed in a "real" lawsuit. Hearings are somewhat informal, and rules of evidence such as the hearsay rule are more loosely applied.  Typically, Small Claims cases are not heard by an actual judge. The hearing officer will most likely be a local volunteer attorney sitting as a temporary judge on the Court’s behalf.  The hearing officer is expected to apply the law as any other court would, but the relative informality of the Small Claims process inevitably leaves open the potential for some to go Solomonic and to do "what seems fair" regardless of legal niceties.

So then, to return to the Times report:

One point that the story alludes to but never states plainly—"burying the lede" as the journobloggers like to say—is that the jurisdictional limit on California Small Claims cases will be increasing as of January 1, 2012. Ms. Peters will be permitted to claim as much as $10,000 only because her hearing is scheduled for the first court day of the new year. If the case were heard today, the maximum award would be only $7,500.

• The increased jurisdictional limit has some oddities of its own. First, the $10,000 maximum only applies to claims asserted by actual human plaintiffs. Corporate plaintiffs are now, and will remain, able to seek relief in Small Claims Court only up to $5,000. For reasons that are not at all plain, the existing $7,500 limitation will remain in place even after January 1 for claims of "bodily injuries resulting from an automobile accident," in cases in which the allegedly negligent defendant "is covered by an automobile insurance policy that includes a duty to defend."

The claim by the Times that "Honda can't spend a single dollar on legal help" is bunk. The only thing Honda cannot do is send a lawyer to appear at the Small Claims hearing itself. Up to the courthouse door, Honda can (and presumably will) spend whatever it wants to obtain advice and assistance from its attorneys in preparing to put on a defense. Honda can be represented at the hearing by any employee it designates, so long as that employee is a non-lawyer whose primary job is something other than appearing for the company in Small Claims court. Whoever that employee may be, it is near to inconceivable that he or she will not have been fully briefed and prepared, armed with all necessary evidence, and likely supplied with a written legal brief, drafted behind the scenes by counsel, for the "guidance and assistance" of the hearing officer. To the extent that insurance coverage applies, Honda's liability insurer may well be paying for the necessary legal consultation.

Also not mentioned by the Times: if Ms. Peters claim results in a judgment against Honda, Honda has the option of appealing that judgment. In California practice Small Claims defendants have a right of appeal, but Small Claims plaintiffs do not. A small claims appeal goes before an actual Superior Court judge and is heard de novo: that is, it is an entirely new hearing, as if the original Small Claims proceeding had not happened.  More pertinent to the unreliable theme of the Times story: in Small Claims appeals, the parties are entitled to be represented by an attorney at the hearing, as Honda surely would be. 

Having glossed over the extent to which attorneys can and will involve themselves in Small Claims litigation, the Times sets its controls for the heart of hyperbole and and runs straight on into trend-spotting cliché:

If she's successful in getting others to follow her example, Peters could inspire a whole new litigation strategy in the auto industry and other businesses. Working together but filing lawsuits independently, consumers could force companies to go mano a mano with individual plaintiffs in far-flung courtrooms nationwide.

Call it a small-claims flash mob.

"This could create a lot of problems in the industry," said Aaron Jacoby, the Los Angeles defense attorney who heads the automotive industry group at the Arent Fox law firm.

Dewy-eyed invocations of "social networking and the Internet" follow, leading to the inevitable "to be sure" caveat and the equally inevitable exception to the caveat. Small Claimants have to "prepare arguments" and take time from work to show up in court, don't you know? It can be "daunting," adds attorney Jacoby, who almost certainly had more potent things to say than the 16 words the Times elected to quote. But...

there also could be some benefits, beginning with 'cutting the attorneys out of the equation in these cases,' said Richard Cupp Jr., who teaches product liability law at Pepperdine University.

Why might "cutting the attorneys out" be an unalloyed Good? In a further exercise in lede-burying the Times pivots its attention from defense counsel to plaintiffs' attorneys and strikes up what appears to have been the intended true theme of the story: the well known, often painful disconnect between the remedies that are obtained for individual class action plaintiffs—in the Honda cases, $100 to $200 cash and a potential discount of between $500 and $1000 on future Honda purchases—and the rather larger remedies obtained by the much smaller class of lawyers representing them—here, reportedly a share of $8.5 million in fees. One such lawyer is quoted expressing his pride in what he and his compatriots have wrought in crafting the settlement; his personal stake in the payout goes unquantified.

In the concluding segment of the story, we return to Peters and learn that this angry consumer may not be nearly so angry with Honda and its lawyers as she is with class counsel:

If successful, Peters, a state employee, could win damages many times the payment she would derive from the settlement. It helps that she's a former attorney herself (she let her license expire a decade ago), and thus has an easier time navigating the legal system than a typical consumer.

Although Peters hopes that others might also pursue their claims in Small Claims Court, she said if she wins a significant award, the figure could be used to scuttle the proposed class-action settlement in favor of one that would exact more money from the automaker.

'I am just trying to give people a tool kit that shows they have options besides capitulating for $100 or going out and hiring an expensive attorney,' Peters said.

Savvy State-employed recovering lawyer that she is, Heather Peters' decision to proceed in Small Claims Court suggests a calculated assessment on her part that whatever actual damages she or other individual Honda buyers may have sustained amount to something more than a few hundred dollars, but something less than $10,000 apiece. If that is the case, then she is likely right to think that proceeding by a class action offers no real advantage to her in terms of time and resources invested or the size her ultimate recovery. Going that route will not, however, eliminate Honda's attorneys entirely from the mix, much as the Times might wish it.

~~~

Update [1300 PST]: Portland, Oregon-based class action attorney David Sugerman adds a few insights on his blog, including links to Heather Peters' website opposing the class settlement and to her Twitter feed. Interestingly, at this writing, Ms. Peters herself has not linked to the Los Angeles Times story.

Here's a question I am at least somewhat curious about: Who is responsible for this story coming to the Times' attention in the first place, and for building this into a front page story in a fading-but-still-relatively-major metropolitan newspaper? Is Ms. Peters handling her own PR?

~~~

Photo: Tiny World Courthouse, Chambersburg, PA, via Ed South's Wonderful World of Blog. Post title lifted from Steve Martin, ca. 1977.

The Evidence of Things Not Seen

In August, Scott Greenfield (Simple Justice) posted an item ("Where's the Proof?") looking askance at the increasing number of law schools that are apparently treating the law of Evidence as an elective, rather than a mandatory subject. (Antonin Pribetic promptly followed up with a Canadian perspective on the subject on The Trial Warrior Blog.) Scott's post took aim at the notion that future attorneys who won't be spending their time in a criminal or civil courtroom have no real "need" to learn Evidence as a discipline, that it is somehow not relevant to their expected practice. He begged to differ:

The teaching of evidence in law school is not in anticipation of someone being a litigator. Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that's not where it ends. Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law. Yes, M&A. Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence. Why? Because every aspect of law entails a potential of dispute leading to litigation. Any lawyer who doesn't comprehend evidence cannot competently perform his function.

If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer.  If you don't get them, you can't think. You can't reason. You can't understand things the way a lawyer must.

Evidence is that important, to the way that lawyers think and to what they think about. It should if anything be even more important to the way that courts and other judicial bodies go about making decisions that affect or bind or burden those who come before them. In light of that, I was taken aback this week by the case of Kaiser Foundation Hospitals v. Wilson [PDF], in which the California Court of Appeal was prepared with surprising ease to find that the Legislature intended to toss aside one of the nre venerable precepts of the law of evidence: the general prohibition on Hearsay.

Hearsay, you will recall, is evidence in the form of an out of court statement submitted for the truth of its content. For instance, if Tom takes the stand and testifies that "I heard Dick say that Harry ran that red light," that testimony is hearsay if you are offering it to prove that Harry did in fact run that red light. Subject to a bundle of exceptions, hearsay evidence is generally inadmissible—that is, it is not to be heard or considered by the trier of fact—and for fairly obvious reasons: it is at least two steps removed from direct observation of the facts (not "I saw x" but "I heard someone say that they saw x") and, like a message passed from ear to ear in a game of "Telephone," becomes unreliable and subject to easy manipulation pretty quickly.

In the Kaiser v. Wilson case, the Court of Appeal took a look at Code of Civil Procedure section 527.8, which authorizes employers to obtain restraining orders and injunctions against those who are shown to p0se a threat of violence toward their employees. Kaiser Foundation Hospitals believed Jeff Wilson to be such a person: according to Kaiser, Wilson threatened violence against at least two specific Kaiser employees after his wife's employment with Kaiser was terminated. Kaiser applied to the Superior Court for injunctions prohibiting Wilson from violence or threats of violence against those employees, and the court granted the petition. Wilson appealed, arguing that nearly all of the evidence considered by the Superior Court was hearsay that should not have been admitted or considered in support of the injunction. 

The Court of Appeal concurs with Wilson's first premise, that the evidence offered by Kaiser was almost entirely hearsay. However, the court looks at the language of the controlling statute and concludes that in these particular cases the Legislature intended to toss aside the usual prohibitions on hearsay evidence.

Code of Civil Procedure section 527.8(f) requires a hearing before an injunction can issue, and requires "clear and convincing evidence that the defendant engaged in unlawful violence or made a credible threat of violence" as a prerequisite to the judge's decision to grant the injunction request. That same subsection also provides:

At the hearing, the judge shall receive any testimony that is relevant and may make an independent inquiry.

(Emphasis added.)

The appellate court's analysis of the statutory language proceeds from the somewhat unexpected premise that there is "no relevant legal authority regarding the extent to which the rules of evidence do or do not apply" to hearings under this statute. The court is curiously mum as to why it would not presume that the rules of evidence do apply to these cases as they would in most any other Superior Court hearing, especially one in which the standard of proof is defined as "clear and convincing evidence." In the absence of that presumption, the Court of Appeal opines that the reference to "any testimony that is relevant" should be taken to "suggest[] that the Legislature intended to permit a trial court to consider all relevant evidence, including hearsay evidence, when deciding whether to issue an injunction to prevent workplace violence...." (Court's emphasis.) The court takes note that hearsay is inadmissible "[e]xcept as provided by law," but deems the injunction statute's silence on the subject to create such an exception. 

The decision displays a touching confidence in the abilities of trial court judges, who "are particularly aware of the potential unreliability of hearsay evidence, and are likely to keep this in mind when weighing all of the evidence presented." In fact, the court notes that the trial judge in this particular case remarked that the weight he would give the hearsay testimony—the overwhelming majority of the evidence presented—was "not going to be a lot." All of which begs the question, if the hearsay evidence is not going to be given much weight to begin with, how can it be viewed as the sort of "clear and convincing" evidence that is required to support the injunction? Is it unreasonable, before as court imposes significant limitations on a defendant's activities or speech, to require the employer to produce direct evidence of a threat against a particular employee—for instance, the employee's own testimony concerning how the threat was conveyed or perceived—rather than secondhand testimony that someone else "heard" or "was told" of a threat?

I hold no brief in favor of violence, in or out of the work place, but my sense is that the courts in this case have allowed one laudable policy goal, protection from threats and violence, to trump a policy that is at least as laudable and necessary: the policy that evidence should not be considered when, as in the case of hearsay, it is by definition frequently unreliable and always disconnected from direct perception and personal knowledge of the facts it purports to establish.

The rules of evidence have developed over time to provide a degree of confidence in courts' factual findings and for the protection even of bad actors such as Wilson is claimed to be. It troubles me that an appellate court, particularly in the absence of an unequivocal statement of legislative intent, should be so willing to sweep them aside in the name of good intentions.

~~~

A gratuitous and irrelevant postscript:

This reminds me of an exchange heard in a Los Angeles courtroom many years ago.

ATTORNEY A:    Objection. Hearsay.
ATTORNEY B:    Yes, your Honor, but it's really good hearsay.... 

~~~

Illustration: Gossips in the Altstadt, Sindelfingen, Germany, via Wikimedia Commons.

Well, Hush My Puppies! Texas Allows Recovery for Sentimental Value of Accidentally-Euthanized Dog

In law school many a year ago, our Real Property professor assured the class one day that "you can find authority for either side of any legal proposition in the opinions of the Texas Court of Civil Appeals." How right he has proved to be.

The Court of Appeals for the Second District of Texas (Fort Worth) ruled earlier this month that the owners of a dog that had been erroneously euthanized by an animal shelter "can recover intrinsic or sentimental damages for the loss" of their pet.

The case is Medlen v. Strickland (11/3/2011), and the facts before the trial court were largely undisputed. The Medlens' dog "Avery" escaped from their yard and was eventually picked up by Animal Control and taken to a shelter. The Medlens quickly learned their dog's whereabouts, but when Jeremy Medlen showed up to retrieve Avery, he was unprepared to pay the necessary fees for the dog's release. Jeremy was told that he could return in the morning, and Avery's enclosure was marked with a "hold for owner" tag. Carla Strickland, a shelter employee, made a list of dogs to be euthanized that evening and, for whatever reason, overlooked or ignored the "hold for owner" tag. When Jeremy Medlen returned with the requisite fees the next morning, he learned that Avery had already joined the choir invisible.

The Medlens sued Strickland for her negligence in bringing about Avery's death. They acknowledged that Avery had had little or no market value, but argued that they should be able to recover "sentimental or intrinsic value" because Avery was "irreplaceable." The trial judge ruled that those damages were not recoverable and dismissed the case; the Medlens appealed.

The trial judge was persuaded by a Texas Supreme Court decision from 1891, Heiligmann v. Rose, in which the plaintiff's three dogs had been poisoned by a neighbor. The evidence there showed that the dogs' market value (in the sense of what they could have been sold for) was about $5 each, but the Texas Supreme Court found that a higher amount of damages could be recovered based on the owner's showing of the dogs' "usefulness and services." In the 120 years since, the state Supreme Court has not revisited the valuation of a companion animal, and Heiligmann had come to be interpreted to mean that the only way to recover anything other than "market value" for an animal's death is by the sort of showing of "usefulness" to the owner that had been made in that case.

Since Heiligmann, however, the Texas high court has considered how to value other sorts of property found to be lacking in true "market value." In particular, a line of cases has determined that "sentimental" value can be considered when the property that is damaged or destroyed—such as family photos, keepsakes, heirlooms and the like—is of value to no one other than its owner. On appeal in this case the Medlens argued, and the Court of Appeals agreed, that a consistent interpretation of the law should require that animals with purely sentimental value be valued in the same way as any other kind of market-valueless property. In other words, because the dog has no value otherwise determinable, the court concluded that its sentimental value provides the proper measure of damages.

The Court of Appeals in Medlen is insistent that it is only "interpreting" Heiligmann, not overruling it. (As an intermediate appellate court, it has no authority to actually overrule a Supreme Court decision, however old that decision may be.) In its interpretation, however, the Court expressly declined to follow relatively recent decisions from other divisions of the Court of Appeals that have construed Heiligmann to limit or preclude sentimental value as a consideration in animal cases. The upshot, then, seems to be—but don't take my word for it, since I am not a Texas lawyer—that Heiligmann remains "good law" but that there is a division of opinion within the Court of Appeals over how it should be applied. Presumably a Texas trial court not within the Second District could elect to follow the rule as interpreted in other Districts' opinions. So the true "rule" in Texas is actually undecided, until such time as the Texas Supreme Court itself revisits the question.

    California Consequences?

Does Medlen have any immediate impact in California? In my view, it should not. In addition to the fact that decisions of out of state courts are not binding upon California courts, the underlying premise of the Medlen decision—that the purely sentimental value of some types of property is compensable in damages—is not consistent with settled California case law and statutes.

Decs&Excs readers may recall that the current state of the law in California turns on two recent decisions. In the 2009 case of McMahon v. Craig, the Court of Appeal found that an animal owner cannot recover damages for emotional distress or "loss of companionship" of an animal that is injured or dies as a result of negligence. More recently, in June 2010, a different division of the Court held in Kimes v. Grosser that the "reasonable" costs of treatment—however that may be determined—can be recovered when an animal is injured, even when those costs substantially exceed the animal's de minimus market value.

Both McMahon and Kimes considered the doctrine known in California as "peculiar value." Peculiar value is the value of property that is unique to its owner, and the doctrine is closely equivalent to what the Texas court calls "intrinsic value." California law differs from Texas law, however, in the manner in which this peculiar/intrinsic value is determined. Unlike the post-Heligmann cases relied upon in Medlen, which specifically permitted "sentimental" value as an element of "intrinsic value," California courts (and federal courts applying California law) have consistently ruled that "peculiar value" must be determined on a "rational" basis, and that sentimental value is a factor that is not to be considered in making that.

Also notable: the concept of "peculiar value" is a creature of statute under California law, codified since 1872 as Civil Code §3355. That statute provides for recovery of peculiar value damages, but only in cases of "willful wrongdoing"—i.e., not in cases where the cause of loss is mere negligence, as in Medlen—or in cases in which the defendant had "notice" of that value prior to the loss occurring.

The current majority rule across the States is that animals are personal property and that market value, or some rationally determined pecuniary value other than mere sentiment, is the appropriate basis on which to calculate damages for loss of an animal. In my opinion, Medlen is most likely not a harbinger of a national shift away from that eminently sensible rule. Medlen is likely to be cited by plaintiffs in animal cases going forward, however, until it is eventually either accepted or expressly rejected on a state by state basis.

~~~

Illustration: "In Disgrace" by Bessie Pease Gutmann. And yes, there was a copy of this classic on my bedroom wall when I was but a young pup of a wee sprat.

 

Weekend Update: Rakofsky v. Internet Week 25 — "Extra Tentacles, Please" Edition

This is the tenth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 95 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings/Commentary

Decs&Excs has not posted on this case since the Week 13 Update, because the Rakofsky litigation had been largely quiet—until the past few days when, like some tentacled legend of the deep, it burst again into view, vaster and more monstrous than ever before.

In the interim between Updates, on September 15, the Court finally heard and granted the long-pending motion to admit Marc Randazza pro hac vice to appear on behalf of the Group of 35 defendants that includes this blog. At the same time, the Court set a March 14, 2012, date for consideration of any and all pre-Answer motions—motions raising procedural, jurisdictional or other objections that may appropriately be addressed prior to a defendant admitting, denying or otherwise responding to the factual assertions in the First Amended Complaint—and a related briefing schedule. The Court also set a November 15 deadline for Rakofsky to find an attorney to take over representation of the plaintiffs following the withdrawal of former counsel, Richard Borzouye. (See the Decs&Excs Week 11 Update.) If no new counsel is found, Rakofsky—who is admitted to practice law in New Jersey, but apparently not in New York—will be permitted to continue to represent himself, but only as an individual plaintiff. The Rakofsky Law Firm, a professional corporation, will not be allowed to proceed with its claims unless an attorney is found to represent it. Proceedings are otherwise stayed until such time as the Court permits them to proceed. The Court's scheduling and stay order is viewable here [PDF].

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  On August 25, Eric posted the news that, the Court's stay order notwithstanding, Joseph Rakofsky has filed a new motion seeking a smorgasbord of remedies and relief. Eric has uploaded a scanned copy of the motion here. 

What does Mr. Rakofsky want from this motion? His wish list includes:

• Permission to serve subpoenas on Google and certain web hosts as part of his effort to obtain the identity of the author of a now-withdrawn blog post formerly hosted on Blogspot, and of anonymous/pseudonymous commenters who have written mean things about him on the BanniNation.com site;
  
  
•  "[A]n order to preserve electronic data and forbidding any party from destroying, altering, deleting or spoiling their communications, documents, other material or content relevant and material to this case."
  
  
  • This is apparently an attempt to prevent any of the defendants from deleting their allegedly offensive writings about Rakofsky. It is an ironic request, given that Rakofsky himself quickly deleted his own websites when they became subjects of scrutiny among bloggers. (Some portions of Rakofsky's sites were saved and preserved via cached information; they are viewable here.)
    
    
• Permission to file a Second Amended Complaint, in which Rakofsky's claims are reorganized and restated and some 14 new defendants—among them, Google, Yahoo, Techdirt, various units of The Atlantic, Thomson Reuters Canada, and Canadian Lawyer Magazine—are added;
  
  
• A call for unspecified investigations of unspecified parties or counsel by New York disciplinary authorities;
  
  
• An order for monetary sanctions against Rakofsky's own former counsel, Richard Borzouye, for having "abandoned his professional responsibilities" to his client while in the process of withdrawing;
  
  
  • It is worth recalling at this point that Borzouye was not idly selected as counsel by Rakofsky: before he pulled it down, Rakofsky's website represented that he and Borzouye practiced together in some capacity within the Rakofsky Law Offices.
     
• Orders of default against nine defendants Rakofsky contends were served with earlier pleadings but who have not entered an appearance in the case.

The big news here is the proposed overhaul of the operative Complaint. The current First Amended Complaint is 82 pages long. It names 81 defendants and asserts claims for damages under four counts/causes of action: defamation, intentional infliction of emotional distress, intentional interference with contracts, and purported violation of New York's Civil Rights Law (relating to the "unauthorized use" of Rakofsky's image).

Possibly with the aid of artificial giant squid hormones, the proposed Second Amended Complaint has nearly quadrupled in size, running to 302 pages. The expansion is driven in part by a restructuring: while the prior complaints lumped all defendants together in each cause of action, now Rakofsky proposes to separate out his particular claims against discrete groups of related defendants. Thus, what was once a single cause of action for defamation is now 38 separate causes of action for defamation. Moreover, Rakofsky has added a similar collection of 33 separate causes of action on the new, if similar, theory of "injurious falsehood." Still in place are single counts seeking damages for infliction of distress, interference with contract, and the claimed Civil Rights Law violation, along with a new cause of action for intentional interference with "economic advantage."

Most notable, however, is the final, Seventy-Eighth [78! - Count 'em! - 78!] Cause of Action for "Prima Facie Tort." Here, Joseph Rakofsky alleges that each of the defendants has conspired with all of the others

... for the purpose of intimidating, injuring grievously and destroying the reputation, business and profession of plaintiffs (a practice hereinafter known as 'mobbing').

"'Mobbing'?" I hear you cry, "What is this 'mobbing' of which he speaks?" Gentle Reader, read on.

It is possible—not likely, mind you, but possible in this Most Possible of All Possible Worlds—that Joseph Rakofsky came up with this "mobbing" theory on his own. It is also possible—and rather more likely, in my untutored opinion—that the notion left its seeds while he was sleeping by way of this little Rakofsky-related thought experiment posted in early August on the blog of [non-defendant] Norm Pattis.  From whichever dank underplace of the mind it may have sprung, the act of "mobbing" seems to consist of little more than linking online in an implicitly supportive way to someone else's commentary elsewhere online. From the Second Amended Complaint:

1230.  Defendants have conspired with each other and have acted in combination and concert with each other by linking their Iinternet websites [sic] to the Internet websites of their co-conspirators, thereby magnifying the damage they intended to cause to plaintiffs.

1231.  Defendants linked their Internet websites to the Internet website of their co-conspirators to silence plaintiffs and intimidate them from, and retaliate against them for, resorting to the legal processed available to them under the law, thereby interfering with their legal and constitutional rights, doing so through the use of the Internet ( hereinafter referred to as 'cyber-bullying').

You caught that, right? "Mobbing" has become "cyber-bullying", and both of them consist of expressing to the World, via the Internet and/or a website thereon, one's, er, skepticism of the merits of Joseph Rakofsky's having sued one. 

There's more: some [unidentified sub set of the 95] defendants are alleged to have identified Rakofsky's publicly available Facebook contacts and to have contacted them "for the purpose of alerting them" to unfavorable remarks about Rakofsky online. Some unidentified others  "have attempted to rely upon the anonymity they believe the Internet has afforded them" to publish who-knows-what that has sufficiently offended the plaintiff that he considers it "despicable" or "obscene" or " illegal." And so on, and so on, to the tune of $25 Million in supposed damages on that cause of action alone. 

Those anonymous/pseudonymous defendants seem to be the real catalysts of the sudden metastatic giantism of Rakofsky's claims. He hates them and is driven to conniptions because he cannot seem to Get At Them. He is so thoroughly put out by that merry band of sophomoric zanies that he is prepared to advance, as if it were credible in what we so quaintly embrace as Reality, the notion that the known and named defendants —the ones with day jobs and good names of their own to protect—are responsible for it. Yes, friends! In Rakofskyworld, it seems, the likes of the Atlantic and the Washington Post and a Who's Who of reputable legal bloggers are encouraging basement-bound trolls to speculate publicly on random strangers' intimate relations with Equine Americans, fresh fruit, or members of the Nubility. An entirely compelling premise for a lawsuit, yes indeedy, that it is, eh? [For those playing along at home, the correct answer to that bit of hyperbolic japery is "no." Right?] 

Ah, well. Enough of this larking about. Herewith, some concluding links:

• Eric Turkewitz has uploaded the proposed Second Amended Complaint in two parts: Part 1, Part 2.
  
  
• Co-Defendant Mark Bennett has some pointed thoughts on the Rakofsky-Borzouye schism: ¡Que Pendejosidad!
   
• Non-defendant Ken at Popehat has posted thoughts on the "mobbing"' cause of action: The Tort of Internet Mobbing Is Perfect For Suing The Internet
   
• Non-defendant Goth-lawyer-blogger Siouxsie Law has expressed solidarity with the anonymous/pseudonyous masses, declaring: "I'm J-Dog"
   
• Co-defendant Antonin Pribetic reminds us that The Rakofsky Effect: It Actually Works!
  
  
• [Just added:] Defendant of Defendants Scott Greenfield waxes psychophilosophical, contemplating the pathos of a case in which the quest absorbs the man: Rakofsky's Dedicated Life

No doubt, there's more to come. There's always more: that's what "more" means.

~~~

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days. The Rakofsky Weekend Update will return next as developments warrant. .

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not intended to be comprehensive, so I recommend regular consultation of the ever-expanding Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet. 

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project; at this writing, that page has been updated through late July.

 ~~~

Illustrations: The battle with the giant squid, 20,000 Leagues Under the Sea, via Wikimedia Commons. Post title inspired by a Bärtische quip in "Homer's Night Out," a Season One episode of The Simpsons:

Weekend Update: Rakofsky v. Internet Week 13—Policies vs. Principle Edition [Contains Actual Insurance-Related Content]

 'Classes opened Sept. 9, [1885,] in the afternoon, with a short class,' wrote St. Thomas’ first rector.  'There being no books, no desks, very little was possible.'

This is the ninth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

The Rakofsky litigation has been largely quiescent these past two weeks in view of the Court's order staying proceedings until September 15 following the withdrawal of the plaintiff's former counsel, Richard Bourzoye. (See previous Week 11 Update.) A September 15 hearing date remains on calendar for the Court to consider the long-pending motion to admit Marc Randazza pro hac vice to appear on behalf of the Group of 35 defendants that includes this blog.

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  

Yesterday (August 4), Eric posted the unexpected news that two defendants—the University of St. Thomas, in Minneapolis, Minnesota, and Associate Director for Faculty and Public Services in the Schoenecker Law Library at the University of St. Thomas School of Law, Deborah Hackerson (a contributing editor at the Legal Skills Prof Blog)—have entered into a settlement with Joseph Rakofsky, and will be dismissed from the case in exchange for payment of $5,000.00.

Professor Hackerson and the University are the subject of Paragraph 186 in the Rakofsky Amended Complaint:

186.  On April 6, 2011, ST THOMAS through HACKERSON, with malice and hate, in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties, in reckless disregard for the truth, published the 'Recent Law Grad's Incompetence Leads to Mistrial.' However, there was no mistrial, either in whole or in part, for incompetence on the part of RAKOFSKY, the 'recent law grad' referred to in their publication.

The blog post referred to appeared on the Legal Skills Prof Blog, but has since been expunged. Evidence of its existence, and of its first sentence, can still be found on some RSS feed sites, but a complete text seems not to have been cached or otherwise preserved. (If anyone actually possesses an archived copy, this blog would gladly republish it, for the historical record.)

The terms of the settlement are a matter of public record because someone—either the settling defendants' counsel or Joseph Rakofsky himself—filed it with the Court. That in itself is unusual, unless New York practice varies markedly from what we are familiar with in California. More commonly, a plaintiff would simply request a voluntary dismissal of his claims against the settling defendants, with no need or incentive to publicize the details of the compromise. It is doubly unusual that this particular settlement should be filed, because it provides by its own terms that it "shall not be filed in any court, except to the extent it becomes necessary to do so in order to enforce it after a breach." There has been nothing to indicate such a "breach" has occurred. 

Reaction and Commentary

The online reaction to the revelation of this settlement was swift and resolutely negative—against the settling defendants.  Co-defendant Scott Greenfield promptly posted:

Rakofsky graciously offered to settle the case with all of the defendants for the 'nominal' amount of $5,000.  One would have thought that all the defendants laughed.  Obviously, not all.

It was silly, an extortion attempt by a child.  And they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

At some point, someone at this school is going to be charged with teaching ethics.  How does a school so utterly lacking in principle do this?  It can't, but I guess no one thought of that when it approved of its insurance carrier buying its way out.

I'm absolutely disgusted that this is how anyone, but especially a law school and lawprof, would behave. Cowards? Gutless?  Morons?  Pray they write something mean about you, because you know they'll be happy to fork over five grand for nothing.

Co-defendant Mark Bennett joined in:

Hackerson is a librarian and a law prof; you might expect her to give a damn about the First Amendment. The law school is, well, a law school; you would devoutly wish that it gave a damn about the First Amendment, because it’s teaching lawyers who might some day be called on to defend the First Amendment. Because it’s teaching lawyers who might some day be called on to defend people in trouble, you would also wish that it was willing to fight for principle. The law school collects $37,000+ per year per student. $5,000 is peanuts. But that’s much higher than the value it puts on the First Amendment. By settling for more than it would ever have to expend if it fought the case (the small cost of joining almost seventy other defendants in fighting off a frivolous suit by a pro se litigant), the law school assigned a negative value to free expression.

Earlier today, Trial Warrior blogger [and co-defendant] Antonin Pribetic added:

[University namesake] St. Thomas Aquinas identified four cardinal virtues: prudence, temperance, justice, and fortitude.

Quaere: Does this settlement reflect any of these four cardinal virtues?

Was this a prudent settlement? No. Prudence demands the exercise of sound judgment based upon foresight. Settling a case when all other defendants choose to exercise their freedom of speech is imprudent.

Was this a temperate settlement? No. Temperance requires moderation in action, thought, or feeling; restraint.  Paying a nuisance fee to settle a defamation claim wholly devoid of merit and lacking jurisdiction is intemperate.

Was this settlement just? No. justice is moral rightness based upon ethics, rationality, law, natural law,  fairness, or equity. To settle a case for the sake of expediency is unjust.

Was this settlement fortitudinous?  No. It lacks what is depicted in the photo below.

As a defendant myself, I am no happier than my compatriots to learn that Joseph Rakofsky has reaped even $5,000.00 worth of crumbs from his deeply misguided, reprehensible pursuit of his pointless, insulting, and Constitutionally unsound claims. I would have wished, for most of the reasons expressed above, that UST and Prof. Hackerson had heeded the advice growled by George C. Scott in the opening speech of Patton:

I want you to remember: No bastard ever won a war by dying for his country. He won it by making the other poor dumb bastard die for his country.

But principle—and fighting on, either to prove an important point or to avoid even implicitly conceding it—most likely never entered in to the equation here because, as the release documents reveal, the settlement was made and funded by UST's liability insurance company, Travelers. In the ordinary course of things, it is more likely than not that the insurer had full control over the settlement decision and was under no obligation to consult with, or to obtain consent from, the insureds on whose behalf it settled.

Here is how things work.

A liability insurer makes two promises to its insured: to pay covered judgments on behalf of the insured (up to the policy limits), and to defend the insured against claims that may lead to covered judgments. Unless otherwise agreed, or unless certain sorts of conflicts arise, the general rule under most commercial liability policies is that the insurer's duty to defend potentially covered claims carries with it the unequivocal right to control that defense. That right of control is commonly written in to the policy explicitly. To the point here: the right to control the defense typically carries with it the right of the insurer to settle unilaterally for any reason it may choose. The relevant language, as it appears in the 2006 edition of the ISO commercial liability form, is blunt:

We will have the right and duty to defend the insured against any 'suit' seeking those damages [covered by the policy]. . . . We may, at our discretion, investigate any 'occurrence' and settle any claim or 'suit' that may result.

(Emphasis added.)

Some policies grant specific rights of control to the insured. Directors' and Officers' liability policies frequently require the insured to defend the case on its own nickel, with the insurer reimbursing the expense after the fact. Those policies grant the insured a fair degree of control over the decision to defend or to settle.

Malpractice insurance policies issued to health care professionals commonly require the insured's express written consent to any settlement.  In California, at least, that sort of consent clause is mandatory in medical malpractice policies, and it gives the insured doctor an absolute veto over any proposed settlement. Attorneys are not so fortunate: while many Errors & Omissions policies for attorneys include a requirement that the insured's consent be obtained before settlement, those same policies typically include a so-called "hammer clause," which shifts the financial risk to the attorney if the case goes badly after a refusal to give consent to settlement.

I do not know what sort of insurance UST and Prof. Hackerson actually have with Travelers that may be applicable to this case, but I suspect that it is not one of those policies that extends a right of control to the insured over settlement. I suspect, instead, that it more closely resembles the standard commercial liability policy quoted above. If that is the case, then the decision to settle may well have been made unilaterally by the insurance company, sans consultation or consent, based entirely on the cold equation that giving $5,000.00 to Joseph Rakofsky was faster and cheaper than spending that same amount, or more, or less, to defend the case and to stand up for principle.

And this is the sad truth: liability insurers are in the business of assuming the financial consequences of their insureds' liabilities. Liability insurers are not in the business of fighting for your principles. They do not sign up to fight for principle, and they certainly do not receive enough in premium to make "millions for defense, not one penny for tribute" a viable business plan.

This arrangement, in some ways, stinks to high heaven if you are concerned with litigation as a search for truth and a vindicator of higher things. Over nearly thirty years of practicing in and around insurance defense, I have lost track of the number of cases that were resolved on "economic grounds" when it was my own judgment, or my client's, that the case could and should be fought to the last breath, because the client was in some fundamental fashion "right" and because there was a reasonable likelihood that fighting it through to the end would work. But the insurers' position and practices are understandable: they are not charitable foundations, or activist groups, but businesses. They make a bargain with their insureds in which money is all that is at stake; and because it is the insurer's money, it is the insurer that gets to make the call on when and how and why that money will be spent. 

I loathe "nuisance settlements." They send a terrible message that filing a useless lawsuit is a quick and dirty way to convert your delusions to a little ready cash. I loathe this one in particular because (1) I am a co-defendant and this settlement, if only in a modest way, lends succour to my opponent, and (2) even if I were not a party to the case, lawsuits the like of this—lawsuits that are used as blunt instruments to cow or bully the exercise of defendants' legitimate rights—should not, in a perfect world, ever provide the remotest benefit to those who file them. But no, this ain't no perfect world.

Scott Greenfield and Mark Bennett are criminal defense attorneys, and to their immense credit have chosen to practice in a field in which fighting for principle—particularly the principle that even the "guilty" are entitled to a full and fair process before the State can act against them—is the entire point. Civil litigation, even when Constitutional principle becomes the subject of that litigation, is a hazier affair, far more prone to being compromised by purely mercenary concerns. 

Scott added an update to his original post, with his thoughts on the insurance aspects. I am pretty sure that I am one of the "some" he refers to at the start of this passage:

All of this makes me wonder why some would make the effort to 'explain' (what I would better characterize as 'excuse') this act of stupidity and cowardice.  Some innate human desire to be contrarian, perhaps?  Some desire to show how smart you are, a rather typical affect of lawyers?  No matter, as Occam's Razor teaches us that the simplest explanation that accounts for all known facts is usually the correct one.  There are always outlier arguments, which provide a convenient excuse.

If my assessment of St. Thomas School of Law is wrong, then I invite them to say that they disavow this settlement and despise that it made them appear to sacrifice principle to buy their way out of this completely frivolous lawsuit.

Judge me as you will. I thought I was "explaining" for the reason one would usually want to explain a thing: to provide a reasonably accurate description of the world as it is, whether "some" like it that way or not.  I obviously do not agree with Scott's analysis at every point, and I particularly question his idealistic but unrealistic assumption that UST and Prof. Hackerson had any opportunity to weigh in on the decision to settle. I do, however, largely agree with his last statement.

The UST School of Law and Professor Hackerson have no obligation to do anything but to go on about their lives with Joseph Rakofsky out of them. They do not "owe" anyone anything: not Scott, not me, and not even you, Gentle Reader. Obligation or no, it would be the principled thing for them to volunteer an explanation, if only to salvage their reputations within the legal community and to avoid the appearance—if an appearance is all that it is—of spineless appeasement.  There are more than a few blogs, including Professor Hackerson's own, where such a statement could be posted.

Meanwhile, the deal is done and we move on.

~~~

Update [1411 PDT]: At more or less the same moment as I posted this today, [non-defendant] Ken of the Popehat blog weighed in with more scorn for the settling academics: "The University of St. Thomas School of Law Teaches Values!"

~~~

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days. The Rakofsky Weekend Update will return next as developments warrant. In light of the continuing stay order, this feature will likely be on hiatus for at least another week or two, and possibly until the Court rules following the September 15 hearing.  Or not.

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not intended to be comprehensive, so I recommend regular consultation of the ever-expanding Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet. 

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project; at this writing, that page has been updated through late July.

~~~

Photo: The buildings of St. Thomas Aquinas Seminary, ca. its founding in 1885, via St. Thomas Magazine, Fall 2009.  The linked article also provides the quotation at the top of this post.  The photo appears as well as the cover of the University of St. Thomas quasquicentennial calendar.

Weekend Update: Rakofsky v. Internet Week 11—As Seen on TV Edition [Updated]

This is the eighth in the ongoing series of posts compiling the most recent publicly available developments surrounding the litigation Commonly Known As Rakofsky v. Internet, in which New Jersey attorney Joseph Rakofsky has sued some 81 media organizations, professional institutions and, above all, individual legal bloggers, claiming that he was damaged by those defendants' publication of reports and commentary on his performance as defense counsel in a murder trial in Washington, D.C., and issues appurtenant thereto. All installments in this series are collected in the Rakofsky v. Internet category of this blog. 

Pleadings/Court Filings

There were no Decs&Excs Rakofsky updates for the past two weeks, as the case slipped in to something of an early summer lull. No more: at week's end, several new motions were filed by freshly-appearing defendants. In addition, the court has now scheduled a hearing date concerning the long-pending motion to admit Marc Randazza pro hac vice to appear on behalf of the Group of 35 defendants that includes this blog.

As always, action in the courthouse has been monitored and reported by [my co-defendant and New York local counsel] Eric Turkewitz.  Yesterday
(July 21), Eric posted no less than three new Motions to Dismiss:

• Motion to Dismiss on behalf of the Washington Post, Post writer Keith Alexander and Post researcher Jennifer Jenkins.
  

The Washington Post's reporting is generally believed to have been the first coverage of the Dontrell Deaner mistrial, and most if not all of the subsequent commentary traces back to those reports.

• Motion to Dismiss of Georgia attorney Jeanne O'Halloran.  

The O'Halloran motion includes two previously unseen pieces of the record in the Deaner murder trial: the reporter's transcript of proceedings on
March 31 in which Joseph Rakofsky initially raised the issue of his being removed as counsel for the defendant, and the motion of investigator Adrian Bean that first raised the question of whether Bean had been asked to "trick" a potential witness.

• Motion to Dismiss of Washington City Paper and its writer, Rend Smith. The City Paper is a free journal that first reported on the Deaner mistrial on April 4, shortly following the Post's initial report.

With the appearance of the Post and the City Paper, and the prior filing on behalf of Reuters, the principal institutional defendant not yet heard from is the American Bar Association/ABA Journal.  There is no information circulating concerning whether the ABA has been served and when, if at all, its response is due to be filed.

All of the motions previously reported remain pending, without a decision by the Court.  This past week, the Court scheduled a hearing date in September on the motion to admit Marc Randazza as counsel in New York for the limited purpose of representing his clients as defendants in the Rakofsky case. 

[Update 7/23/11 0740 PDT]: The Court has issued an order granting the motion (discussed here) of Richard Borzouye to withdraw as counsel for the plaintiffs.  Eric Turkewitz has the full text of the order here. In order to permit Joseph Rakofsky time in which to retain new counsel for himself and, particularly, for his law firm (which as a corporation cannot appear in the case without an attorney), the Court has stayed all further proceedings until September 14.  The motion regarding admission of Marc Randazza remains scheduled for hearing on September 15.

Rakofsky Online

Rakofsky v. the Internet has continued to gobble up global mindshare in recent weeks, migrating from the Internet to your local cable or satellite television service in the form of a "bumper" on Cartoon Network's [adult swim]. That's it at the top of this post, in an embeddable version found via [bump worthy]. The misspelling of "mistrial" in the faux-Facebook item is a nice touch.

Another sighting of Rakofsky in the wild is reported by [defendant] Nathaniel Burney:

(Mr. Burney, it may be recalled, was not originally a party to the Rakofsky litigation, complained about it, and got his wish by being joined as an additional defendant in the Amended Complaint. He runs a thriving lightning rod distributorship on the side.)

[Defendant] Mark Bennett took the opportunity to review [what is in some circles speculated to be] Joseph Rakofsky's Craigslist Ad to Replace his attorney, and to offer helpful suggestions toward its revision.

The Rakofsky Weekend Update will return to Decs&Excs next week, barring the unlikely event that nothing happens in Rakofskyworld in the next seven days. The Rakofsky Weekend Update will return as developments warrant. In light of the stay order described in the Update above, this feature will likely be on hiatus for at least a week or two, and possibly until the Court rules following the September 15 hearing. 

~~~

Disclosure/Disclaimer: I am a defendant in the Rakofsky case, one of the jointly defended group I refer to above as the "Group of 33 35," because of my having written this post; I commented previously on my involvement in the action here.  To the extent that I may have any non-public information concerning the case, my policy is not to share it in these update posts.

Mark Bennett continues to maintain and update a thorough compendium of links to Rakofsky-related posts on his blog, Defending People.  My own selection of links is purely subjective and not intended to be comprehensive, so I recommend regular consultation of the ever-expanding Compendio Bennetticus for the fullest range of blog responses to Rakofsky v. Internet. The Compendio achieved a milestone this week when Mr. Bennett announced:

To which I responded:

And, as if in answer to a blogger's prayers, by week's end the 101-post mark had been reached. Woof!

The progress of the case through the courts is also being monitored on the Rakofsky v. Internet "Threat Page" maintained by the Citizen Media Law Project, although at this writing that page has not been updated since late June.

Profiles in Credibility

In the shiny, bold and brazen world of social media and social networks, LinkedIn—the self-styled "World's Largest Professional Network"—receives recommendations in plenty as the "It" spot for attorneys and other skilled laborers looking to connect, interact, gel, spark, and perhaps spontaneously combust in a dizzying explosion of opportunity.  To that end, LinkedIn's toolkit includes discussion groups—cleverly named "LinkedIn Groups"—through which like-minded or similarly inclined Linkedinovians can chat one another up, raise and resolve the burning questions of the day, and potentially (yes!) conjoin for mutual benefit.

It is hardly a bad idea in theory, this seeking out of others whose technical skills and specialized knowledge may meet your needs.  It is also not without its perils, especially for those involved in litigation.

Just today, I noticed a discussion thread in the LinkedIn "Insurance Coverage" Group that gave me pause.  An attorney in the Buffalo/Niagara region of New York has started a discussion under this title:

Need ins agent expert to testify at trial in NY Sup Ct Erie Co that standard for agent of direct writer is to obtain requested coverage in reasonable time or inform client of inability to do so.

What can we deduce from this?  It is reasonably clear that this attorney is involved in active litigation—either a dispute with an insurance company over the terms of a policy or, perhaps, a claim for professional negligence against an insurance producer for failure to obtain needed coverage—and is going to need the assistance of a qualified expert witness to address the existence and terms of certain legal duties, standards of practice, or standards of care that may or may not apply in the circumstances under New York law.  

That an attorney would need and want expert testimony in support of his or her client's side of such a case is not at all surprising.  Nor is it unreasonable on the face of it for an attorney to conclude that a few discrete inquiries among the networked professionals on LinkedIn might lead to a source of such expertise.  Discretion, however, is not much in evidence here, even if we disregard the unseemly spectacle of a dozen or so self-styled experts—each of whom may in truth be, for all I know, fully qualified to respond to the question at hand—weighing in with the social network equivalent of "Me! Me! Oh, please pick me!"

I see the potential for trouble, both for the inquiring attorney and for any responsive expert.

While a topical LinkedIn Group is not an entirely public forum, the barriers to entry to a Group are far from insurmountable.  When a lawyer announces openly in a LinkedIn Group a search for a consultant or expert to work on a pending case, it is reasonable to assume that that announcement can and will be seen by the opposing party or opposing counsel, or by a consultant or expert who may at some point, perhaps already, be working with opposing counsel on the same case.  To post this sort of question to LinkedIn is to tip your hand in at least a modest way.  How significant the revelation may be will vary according to the circumstances of the case, obviously, but it is hardly difficult to imagine a situation in which the knowledge that a party has not yet located a necessary witness would be knowledge of real value to "the other side."  When you beat the bushes in public you reveal something of your bush-beating technique, which is exactly the sort of revelation of tactical or strategic thinking—aka that cherished resource, "attorney work-product"—that most legal professionals are anxious to avoid.

A potentially more substantial problem stems from the way in which this particular inquiry has been phrased.  The attorney essentially says flat out that the object of the search is not an expert to consult or advise generally on a subject, i.e., "standards for agents of direct writers."  Rather, as phrased, the attorney announces a search for an expert who will commit in advance to stating a particular opinion, i.e., "the standard for agents of direct writers is [as stated by the attorney]."  The standard articulated by the attorney may, in truth, be the applicable standard in New York; the method by which the opinion has been solicited, however, potentially compromises the credibility of any expert who takes the stand to describe it.

Expert witnesses are constantly accused, in depositions and at trial, of being mere "hired guns" whose opinions should be disregarded because they are "bought and paid for."  Expert witnesses are always under scrutiny by opposing counsel concerning the manner in which they came to be selected and hired.  Framing the search for an expert as has been done in this LinkedIn discussion makes the "hired gun" argument that much easier for opposing counsel to advance, by providing what may be perceived as direct evidence that whichever expert ultimately ventures the relevant opinion should perhaps not to be trusted by the trier of fact.  

With an expert witness, credibility is everything.  An expert's opinion testimony is only as persuasive and only as valuable the expert's explanation of the reasons for holding that opinion.  A jury or a judge needs to be persuaded that the expert's opinions are reliable because the expert genuinely holds those opinions and has come to them by a reasoned and articulable process.  The entire structure of expert witness credibility collapses when it can be demonstrated, or at least made to appear, that the expert was retained to parrot opinions dictated by counsel, to be as it were a mere "mouthpiece's mouthpiece."  

We can leave to another day the ethical questions suggested by an expert who leaps too happily to answering an inquiry framed as this one has been.  A reputation for "saying what the attorney wants to hear" may be advantageous in the short term, but it does nothing to enhance the reputation of a witness for true expertise.  Moreover, a willingness to promise to provide a specific opinion even before learning the particular facts of the case to which that opinion applies shows a cavalier attitude at best, and may suggest a mercenary willingness to Say Anything for the sake of a fee.  

The value of confidentiality in selection and consultation with experts is reflected in the practice in most jurisdictions of not permitting inquiry into the identities or qualifications of the parties' respective expert witnesses until the latest stages of the litigation, immediately prior to trial.  In an adversary system, the Other must always be assumed to be watching, waiting to spot and to seize any advantage; information concerning the opponent's selection of an expert may provide that advantage.  Hunting for expert assistance in litigation is therefore typically best done under as much cover as possible.  Shouting an invitation to the hawkers of expertise in the electronic bazaar that is LinkedIn might work out for the best in any given case, but it seems a risky and unnecessarily exposed way of going about an important and already delicate task.

~~~

Photo:  Sheet music cover of "They Didn't Believe Me", from The Girl from Utah (1914), via Wikimedia Commons.