Winning Ugly

June 18, 2014

Judge Papov looked pissed.

“You’re really going to instruct your client not to answer the question and waste everyone’s time, Mr. Rushie?”
“Judge, you’re not giving me much of a choice here…”

The judge didn’t even bother to hear argument. He looked at me, looked at my older adversary, and made a decision as soon as we reached the podium.

A week ago I had instructed my client not to answer a question in a deposition because it called for privileged information. The other side filed a motion to compel a response.

Before coming to court I had done the research and written a brief on the issue, confirming that my instruction not to answer was appropriate. No judge in their right mind would force my client to divulge privileged information with 5th Amendment implications, especially when the case law was this clear, right?

Of course, this was discovery court, where the dreams of young lawyers go to die. When it came to justice or convenience, convenience always seemed to win out. At one point the judge mentioned “If you don’t like my decisions, maybe you should work out your disputes before hand.”

As the judge glared down, I think this was the last place in the world I wanted to be. It was 85 degrees, and was packed to the brim with dozens of lawyers hoping to be heard quickly and get out. I waited over two hours to be called. Until my hearing, the judge had been moving through his docket quickly, mostly making decisions that seemed almost arbitrary. For a brief second, pressed shirt now drenched with sweat, I pictured myself laying on a beach somewhere drinking a piña colada. I could hear the ocean.

Judge Papov brought me back to reality and bellowed, “Mr. Rushie, I told you once, and I will not tell you again. Instruct your client to answer the question. I don’t have all day.”
Gary turned and whispered in my ear. “We can’t give them that information, right? You gotta fight for me…” Gary was right.

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Smokey the Cat

January 5, 2014

“Jordan, have you ever done an eviction before?” my boss James asked me. I had been working for a small firm in suburban Pennsylvania for about three years now, and was beginning to hit my stride as a lawyer. James was letting me handle files from start to finish with more regularity.
“Nope. But I’m sure it’s not rocket science. Just give me the file, old man,” I said with a grin. “This one sounds boring.”

The case was simple enough. A woman named Agnes was renting a house from one of James’s biggest clients. She hadn’t paid her rent in a long, long time. The client decided he didn’t want her living there anymore. Too easy, or so I thought.

I drove to the courthouse that day and filed the paperwork. A few weeks later I had a default judgment and a writ of possession, meaning I could have the constables remove the tenant with force, if necessary. The constable posted notice on the house, and we made arrangements for the eviction. Again, too easy. Chalk this up as another win.

“How is the eviction case coming along, Jordan?” James asked me a few weeks later.
“Great! We got a default judgment. I’m going to the house tomorrow morning to remove her. Next time consider giving me an interesting assignment, old man,” I said laughing.
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Talking Torrents: Some Thoughts on Prosecuting and Defending Bittorrent Cases

June 16, 2013

600px-US-CopyrightOffice-SealMany of you have heard of bittorrent litigation by now. In short, copyright holders will sue a group of people sharing their work on bittorrent. Often the lawsuits involve pornographic movies. Many of these lawsuits also involve large amounts of defendants, e.g., Media Company v. Does 1-50, which has lead to significant amounts of criticism. This month I had the pleasure of defending the first ever bittorent case to ever see the inside of a courtroom in the Bellwether Trial – Malibu Media v. Does 1, 13, and 16.

When it comes to the nuts and bolts of litigating bittorrent cases, there is a popular narrative on the internet. It goes something like this: all the cases are a mass extortion scheme, the people accused were picked out of a hat, no one pirates anything on the internet, nothing could ever be proven in court, and if you just fight them a little bit these guys will run away and probably get sanctioned like Prenda Law.

If you read the internet, you would think everyone who gets sued in a torrent case is an unsuspecting victim forced to settle because it’s the cheaper route. And it doesn’t matter because none of theses case could ever be taken to trial anyway.

I disagree, and I think there is a lot of untrue information out there on the internet. This is my two cents, take it for what it’s worth…

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How to Defend a Deposition – Don’t Just Show Up and Play Lawyer

April 16, 2013
Uh oh. The other side is wearing a suit and saying "objection." They must be for real.

Uh oh. The other side is wearing a suit and saying “objection” a lot. They must be for real.

Yesterday Chris Bradley wrote a piece about how to defend a deposition. Advice? Just show up. Maybe wear a suit. And if you feel like it make an objection, but do it in a really lawyerly way. The other side will respect the fact that you’re there and put on a suit, and won’t take advantage of your witness.

Easy, right?

Errr… not so fast…

When it comes to clients, it takes more than just showing up and wearing a suit. What bothered me about this particular article is Chris decided to fake it with real clients. See, Sybil Dunlop wrote a piece last week about her “motion in lemonade“, which was funny. Why was it funny? Because it’s okay to mess up or puff yourself up before a lawyer who is supervising you. You’ll look dumb, but it won’t hurt anything except your ego.

However, that logic does not apply when you’re the attorney in charge. It is not okay to be a pretend lawyer with it comes to  clients.

You are either competent to handle an issue or you’re not. In Chris’s case, he may not have been competent to handle the issue but went ahead and decided to go ahead and fake it anyway, thinking that “showing up” was enough to do his client right.

That can get you into trouble. Because you know what’s worse than making a big mistake in a deposition? Making that mistake because your lawyer didn’t give you good advice. That can get both you, and your client, into serious trouble.

Showing up is never enough, especially when it comes to defending depositions.

So, let’s take a look at why this is awful, awful advice to a young lawyer. Because depositions are very, very important.

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Customer Service

April 6, 2013

At first glance, I thought Brandon was going to be a great client for the firm. He was dressed well, had a thriving business, and had no qualms about paying our retainer. This was going to be a good relationship. Brandon wanted to hire us to help him go after about six businesses who stiffed him.

Easy enough.

James called me into his office and said to just run with the file. I’d worked for James for about three years now, and he was confident I knew the ropes when it came to handling civil litigation files. James sent Brandon an email letting him know I would be handling the file.

“Dear Brandon: My associate Jordan will be handling your cases. Please continue to copy me on emails, as I will be supervising, but Jordan will be your point of contact. Thanks. -James.”

The next morning, I got into the office after getting back from court and checked my voicemails. “Jordan, it’s Brandon. Have those lawsuits been filed? I’m eager to get started!” I returned his call quickly. I didn’t want to cost James a client. But how could I possibly review his file and initiate a lawsuit in less than one day?

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Prenda Law, John Steele, and Paul Duffy file suit against Alan Cooper, his lawyer Paul Godfread, and anonymous John Does

March 3, 2013

I am reserving commentary since I haven’t had a chance to look at the pleadings in depth. The answer to most of your questions is “I don’t know.” Are they suing the blogs? Commenters? I dunno.

So, without further ado, here are the pleadings. To use a lawyer phrase, they speak for themselves:

Paul Duffy v. Godfread, at. al.

Prenda Law v. Godfread, at. al.

Steele v. Godfread, et. al.

Dockets are found here:

Duffy v. Godfread docket

Prenda v. Godfread docket

Steele v. Godfread docket

Prenda and Paul Duffy filed in Illinois. Steele filed in Florida. Again, I don’t know why. Procedurally, these appear to be state court actions that were removed into federal court.

The named defendants in Illinois are represented by Erin Russell and Jason Sweet. It looks like Paul Duffy is representing himself and Prenda is represented by counsel. (I can’t make out the name in the pleading). In the Florida action, Brad Patrick is representing the named defendants, and John Steele is representing himself.

Get your popcorn, because this is going to get interesting…

A Day Like This

December 18, 2012

“Ah, discovery court…”, I thought to myself, “where the dreams of baby lawyers go to die.” Discovery court is a funny animal. It is a giant courtroom packed with about a hundred other lawyers, most wearing suits from JC Penny or with holes in them. The actual hearing usually lasts about 10 seconds, and the judge usually accuses both sides of acting like children. It always smells faintly of cigarette smoke and cheap cologne, with a just hint of booze in there.

If you have any delusions that law is prestigious, spend a day in discovery court and you’ll quickly learn otherwise.

Today it was about 35 degrees out and rainy, and I had left my umbrella at the office. Fine Philadelphia weather, just warm enough that it’s not snowing, but cold enough to make the rain feel downright miserable. And, of course, the only way to get to the courthouse is to walk a few blocks in the weather.

I reached the courtroom cold and wet. I must have been in this courtroom a thousand times; it felt routine at this point. But discovery court is always the same. Show up at 8:45am, sign in, and then wait for your case to be called, hopefully quickly. Sometimes you are there for 20 minutes, sometimes you are there well into the afternoon watching petty discovery disputes. The issues are always the same, too… “I asked for documents and they didn’t give them to me” or “She noticed a deposition but didn’t ask me for convenient dates.” I could probably argue a discovery motion in my sleep – my wife tells me that often I do.

Finally, Judge Marshall was looked up from his crossword puzzles and told the bailiff to call my case. I couldn’t blame the judge for being uninterested – I wanted documents but the other side didn’t give them to me. Judge Marshall probably hears this problem fifty times a day. Hopefully I’d be home in time to grab soup from my favorite soup place. They were usually out of soup by 2pm. And today was a soup day.

Although the issues in my motion were simple, we had exchanged a lot of correspondence. The motion, with exhibits, totaled over two-thousand pages. I decided to print out the motion itself and the relevant exhibits. If the judge wanted to see more, the rest was stored on my iPad. I don’t see why he would need them, though. This also keeps my costs down, as it gets expensive to constantly be printing out documents.

Thankfully, technology had moved forward. There is no need to waste money on unnecessary printing costs in the digital age.

But as I’d soon learn, maybe the courts haven’t caught up yet…

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