If you don’t know the story, Joseph Rakofsky was admitted to practice on April 29, 2010 in New Jersey. On May 3, 2010, he claims he was approached by Dontrell Deaner’s family to defend him in a murder case. (say what? April 29, 2010 was a
Friday Thursday. May 3, 2010 was a Monday. That means Rakofsky got licensed and somehow in four days was approached to handle a murder trial.)
In March of 2011, the case went to trial. It was Rakofsky’s first, meaning his very first trial involved defending a man who was accused of murder. The trial wasn’t going well. Rakofsky moved for a mistrial, and the judge granted the motion, saying:
it was apparent to the Court that there was not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that iured, I think, to the detriment of [Rakofsky's client]. And had there been – If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110. I would find that there are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable person could expect in a murder trial.
I believe that, based on my observations and, as I said, not just the fact that lead trial had not tried a case before; any case. It wasn’t his first murder trial, it was his first trial. As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.
So I’m going to grant the motion.
Ironically, Rakofsky had acted like the mistrial was a big professional victory on Facebook:
After the Washington Post reported the story, and people blogged about it, Rakofsky turned around and sued the internet for defamation because, well, I still don’t understand what the basis of his defamation claim is despite such long pleadings.
Rakofsky’s latest set of papers reads like he wanted to express as few cogent thoughts in as many words as possible. I was very impressed on that level. However, a closer read of the papers reveals a stunningly sad mix of vanity, hubris, and bad judgment.
First, why did Joseph Rakofsky think it was a good idea to take on a murder as his first trial? Answer… because it was his dream:
[Rakofsky] had a dream that he’d had long before he ever attended law school. And it was more than a dream. He spent his law school career training with the big guys in CLE classes and trial lawyer colleges in which he was the only one law student, in court workshops and helping the Legal Aid lawyers work on actual cases. But if you had confidence in your ability and worked hard, you might just take the chance Joseph Rakofsky took.
Huh, I guess what’s good for clients have nothing to do with this. No, this is all about Rakofsky fulfilling his own dream. But I guess it makes sense, because according to my fellow Temple Law alum Jamison Koehler, Judge Jackson recently stated:
The primary lawyer in the case [Joseph Rakofsky?] the Judge said, the one who had been retained, was clearly not interested in considering a plea for Mr. Deaner; he wanted to be able to say he had tried a murder case. Both lawyers, he said, were “clueless” and “motivated by self-interest.”
In his defense, Rakofsky states:
there comes a time when every lawyer will have his first trial. There is no black-letter rule as to what that trial should be.
Very true. But should it be a murder trial? When death is on the line? Personally, I did mock trial in college. I tried my first real case in 2009 after about a year in practice. It was in small claims court, and it involved handling a lease dispute for a family member. Over the years, I started handling small trials before District Justices or in municipal court that my boss James didn’t want to waste his time with. I worked my way up to handling compulsory arbitrations, and now I sit on compulsory arbitration panels. At the same time, I have second chaired several jury trials in the state and federal trial courts. Almost all of my first trials were appealable de novo, meaning each side has an automatic right to a do-over. I’m just at the point now where I would feel okay handling a jury trial on my own. Murder trial? No way. Jury trial? Yeah, I could do that. But there are baby steps a trial lawyer should take.
But don’t worry… it’s cool because:
The United States of America v. Dontrell Deaner was a garden variety murder case…
Huh, a garden variety murder case. Thus, according to Rakofsky: “So much for the non-role of ethics in this case.” (P. 66).
So what went wrong? Nothing, at first. According to Rakofsky , he did a good job. Except then he did a little too good of a job, so Judge Jackson set out to destroy him:
Judge Jackson, even while ruling against [Rakofsky] and allowing the Government prosecutor to prejudice the jury by parading a bloody shirt in front of them (after having barred a photograph of the same bloody shirt from being admitted into evidence), praised and empathized with him! – that is, until Rakofsky showed he had moxie and effectuated a mistrial based upon a conflict that arose by chance when his client decided he knew more about being a lawyer than Joseph Rakofsky at a point at which the Government had tipped its hand; the hand was empty because Joseph Rakofsky had shown with one question that the Government’s star witness, whose identity they had concealed until the day of trial, could not have been an eye witness.
Because Rakofsky did such a good job, and had such “moxie”, Judge Jackson was embarrassed that he was:
out-thought by a first-time trial lawyer who just graduated from law school and was just sworn in. What might a judge do in those circumstances? Perhaps what Judge Jackson did.
[Judge Jackson's] anger may have been prompted by the diligence and zeal with which Mr. Rakofsky conducted his defense in the interest of the client as much as anything else, rather than any shortcoming in defense counsels’ knowledge of court procedure.
[Rakofsky] was guilty, if of anything, of over-competence, as Judge Jackson discovered and, having discovered it, sought to take him down.
P. 52 of Reply to Reuters.
Indeed, Judge Jackson was so embarrassed by Rakofsky’s diligence and zeal that he set out in a conspiracy to destroy Rakofsky, but the judge:
left the dirty work to the local newspaper, never figuring that a bunch of lawyers in other jurisdictions would get word of it and decide to exploit it for the purpose of reaping commercial benefits for themselves and their respective law firms, while destroying Joseph Rakofsky’s reputation, business and career.
Rakofsky outsmarted everyone. He was just that good.
Oh, but what about all that stuff about Rakofsky’s competence and ethics?
[Rakofsky] has not made this a battle for the Court’s determination of either his competence or ethics. At issue in that cause of action is whether Defendants have made untruthful statements of fact about Joseph Rakofsky they made without any factual basis for making them or any attempt to seek facts that might validate them. (P. 44)
Mr. Rakofsky did not put the issues of his professional experience, judgment, competence, ethics, or anything else “in play” by alleging that any of these Defendants defamed him by casting aspersion upon any of those qualities in anything they published. (P. 50)
And all that “ethical crap” is none of the New York Supreme Court’s business, anyway:
Defendants’ counsel seek to portray Mr. Rakofsky’s undertaking the Deaner trial as a breach of ethics on his part. Passing the fact that this Court is not an appropriate forum for ruling on the ethics of a member of the bar of another jurisdiction appearing in a proceeding in a third jurisdiction with the express permission of the Court of that jurisdiction… (P. 65-66).
Basically, his ethical violations are besides the point… let’s not talk about that.
So just why did the legal blogosphere latch onto this story? It was another conspiracy. Because everyone is out to get Joseph Rakofsky. This time to make money off him:
It was “dog eat dog” out there, with law firm jobs few and far between. Indeed, that is the precise reason Mr. Rakofsky formed his own law firm and probably why the Defendants who took the time to attack Mr. Rakofsky had the time to do so, having more time than clients. [Editor's note: LOL irony] (P. 43)
They had a business interest in doing something in unison on the Internet, and they may have viewed Joseph Rakofsky as manna dropping down on then from heaven for the very reason that he presented a handy and “safe” target. (P. 43)
Mr. Rakofsky’s apparent undertaking of a case for which he seemed to have been ill-prepared and seemed to botch, at the same time apparently acting unethically – all things the Defendants, of course, would not do. (P. 44)
To support all this linking stuff, Rakofsky submitted an “expert affidavit” by a guy who thinks that HTML means “hyper treading multi language”. (Hint: I’m just a caveman, so your world frightens and confuses me, but I’m pretty sure that HTML means “HyperText Markup Language“.)
The Defendants in the case at bar created a network of hyperlinks (i.e., “Link Network”) which transported the reader from one defamatory article, written by one defendant, to another defamatory article, written by a different defendant.
In short, Rakofsky’s theory is that linking to other websites creates liability. Although Rakofsky has complained about the suit being called Rakofsky v. Internet, he was, perhaps ironically, dead on the money. Rakofsky literally has sued the web, and its underlying pinnings, based on HTML linking.
Now this suit truly is “Rakofsky v. the Internet.” In Rakofsky’s own words.
Oh, and Rakofsky says it’s unfair to criticize him for suing the internet because:
One would think that lawyers, particularly those who represent clients in litigation, as Defendants’ websites suggest most of them, specifically including Mr. Turkewitz, do, would encourage resort to the judicial mechanism to resolve disputes.
Actually, I don’t know about you, but I am both an attorney and counselor at law. Sometimes the best advice I give a client is not to use the judicial system, because litigation will not end well for them. Had Rakofsky approached me to handle this case, I would have advised him strongly against using the judicial system, and instead encouraged him to work with the bloggers to rehabilitate his reputation.
And ironically, that’s exactly the advice Marc Randazza, counsel for the Turkewitz Defendants, gave Joseph Rakofsky – “this is a bad idea.” Rakofsky forgets that Randazza proposed a settlement where he would have emerged from this in a good position, but Rakofsky turned it down and then broke the seal on settlement discussions. According to the Randazza affidavit, a settlement was proposed:
Mr. Rakofsky would be given column space, in which he would be permitted to explain his side of the underlying story, in which he would engage in self critique and self reflection. Mr. Rakofsky’s name is currently synonymous with poor judgment, unethical conduct, and incompetence. However, it was my belief at the time that Mr. Rakofsky could be “saved” in that he could counter the negative publicity heaped upon him after D.C. Superior Court Judge William Jackson called his competence and ethics into question. (See Transcript of Deaner Trial, Exhibit F of moving papers.) It was my belief that an act of sincere self-reflection could not only counter the negative public opinion of him, but could place him in a better position than before this entire ordeal began.
Having secured the blessing of a number of my clients to carry this proposal to Rakofsky, I placed a call to [Rakofsky's former attorney], but he was not available.
In my second call with [Rakofsky's former attorney], on or about May 26, 2011, we spoke for about an hour. During that time, he and I agreed that Mr. Rakofsky’s best bet for saving his career was through the employment of public relations strategies, and not litigation. During this call, which was marked with an overwhelming amount of cordiality on both sides, we came up with a plan, which would be presented to Mr. Rakofsky.
Although these were settlement negotiations, Rakofsky broke the seal on them when he opposed Marc Randazza’s admission pro hac vice for using the “F-word”. That settlement proposal was rejected, and instead Rakofsky demanded $5000 from each defendant.
But no, it’s not Rakofsky who is causing all this, it’s everyone else:
To the extent that a medium of communication may be used to personify its users, “The Internet v. Rakofsky” is a far more appropriate description.
That is all you need to know about this case, really. It’s not Rakofsky against everyone else – it’s everyone else against Rakofsky. At least that’s the way he sees it.
Unfortunately, Rakofsky’s hubris will ultimately his legacy…
(This is my brother’s band)