However, I was shocked that “The Forgotten Attorney” actually got it right on why they are so angry:

Some people hoped to win the biglaw lottery and lost. Others went because they had a choice between law school, getting a McJob or becoming a commission only insurance salesman and law school seemed a hell of a lot easier and more respectable. But most people just wanted to be glorified and highly paid employees. Basically, a large number of us should not have gone to law school in the first place and if given the opportunity, will leave the profession in a heartbeat.

You can’t motivate these people. They want to escape. They want revenge or justice as they see it. They don’t want to learn the ropes on their own. They don’t want to observe court hearings. They don’t want mentors. They don’t want to go to networking events and probably can’t afford to go either. They are angry and bitter and in my opinion, rightfully so.

Exactly.

Many people went to law school because they wanted a big paycheck and a fancy sounding job. They didn’t want to actually become lawyers, let alone good ones – they wanted to look like lawyers, impress their friends with a fancy sounding degree, and of course and make the money they think good lawyers make.

It all looks so cool on TV, right?

So it comes to no great surprise that they are deeply disappointed to learn that law is a profession, and it requires a lot of work to build a practice, build a worthwhile skill set, and develop a reputation. It’s kind of a bummer to learn that a law license alone is not a ticket to easy money, a cushy job, or the guarantee of an upper-middle class lifestyle. A license to practice law is just an opportunity to maybe one day develop into a good lawyer that people want to hire.

And you know what’s the absolute worst?  When they learned that becoming good at being a lawyer, one that people actually want to hire, requires a lifetime of dedication to learning and improving your craft.

So unfair!

But now they can’t be bothered to learn the craft by finding a mentor, watching a court hearing, or engaging in civic participation. That stuff is boring and it will take forever. No, they want a job, an easy one, with a big paycheck. And they want it right now. Regardless of how much value they add to a client or employer, and they are not interested in doing the work it takes to get there.

And when they can’t have all that in a nice, gift wrapped box, moping on the internet will have to do. Because the problem couldn’t possibly be them. It’s the law schools’ fault, the state bar’s fault, it’s the profession’s fault, and the boomer’s fault.

It’s everyone’s fault but theirs… it couldn’t possibly be their fault.

That right in Pennsylvania is currently in jeopardy thanks to SLAPP suits (strategic lawsuits against public participation). 

Ideally, Congress would pass uniform anti-SLAPP legislation so citizens in all 50 states enjoy the right to public participation. But until that happens, Pennsylvania desperately needs an anti-SLAPP statute because what we have on the books currently is not enough. Every citizen should be able to participate in our government, perhaps through blogging or civic activism, without having to worry about being served with a frivolous lawsuit.

Below are my thoughts on why we need it, and what it would look like…

What exactly is a “SLAPP suit”?

SLAPP suits typically work like this: a censorious thug sues people for saying stuff that is hurtful but true, because they want the speech removed – even though there is no legitimate basis for a lawsuit. The lawsuit is meant to quiet the speech, using the expense of the court system and costly legal fees. 

For instance, some of you are familiar with Joseph Rakofsky, who is  the SLAPP poster boy. You may recall that Joseph Rakofsky, very stupidly, decided to make a murder case his first trial. The trial judge questioned Rakofsky’s competence on the record and then declared a mistrial. The Washington Post picked up the story and wrote about it. When the legal blogosphere wrote about Rakofsky, many of whom were outraged that a baby lawyer would be so callous and cavalier, Rakofsky turned around and sued the internet in a New York state court, even though most of the defendants had no connections to New York, and what they wrote was constitutionally protected free speech.

Although the Rakofsky lawsuit was ridiculous, the tactic worked to some extent. For example, attorney Lori D. Palmieri actually settled with Rakofsky. She even wrote a blog post and apologized to him. The rest of the defendants were stuck paying attorney’s fees for almost two years because of the way Rakofsky handled the suit. 

Even though Rakofsky’s suit had no merit, it was just dismissed last week after about two years of litigation. However, the court declined to sanction Rakofsky, or even punish him. (presumably because of how badly he was beat up in the media).

Sadly, settlement and removal of the speech, even speech that is not defamatory, makes financial sense because under the “American Rule“, litigants have to pay their own counsel fees. This means if you win a SLAPP suit, congrats. You are no longer a defendant, and you’re stuck with a large legal bill for fighting it. You probably had to sit through depositions, your emails were probably parsed through, and you spent a year or two of your life dealing with litigation, which is punitive in and of itself. Free speech comes with a high price tag.

That said, not every defamation lawsuit is appropriate for a SLAPP motion. Take for example the $250,000 judgment BullyVille‘s founder, James McGibney, recently obtained against Hunter Moore. Moore used his Twitter account to falsely accuse McGibney of being a pedophile, possessing child pornography, and threatening to rape McGibney’s wife. A SLAPP motion would have been entirely inappropriate in this case, since McGibney established that Moore made false statements about him, which damaged his reputation. First Amendment attorney Marc Randazza represented McGibney, which was notable, because Randazza is more famous for defending defamation lawsuits. 

What Pennsylvania needs is an anti-SLAPP statue that redresses frivolous lawsuits meant to chill free speech, while still allowing valid defamation and abuse of process claims to make it into the courthouse.

Do SLAPP lawsuits just affect bloggers and journalists?

SLAPP suits arise is other contexts than just blogging, and can affect just about any form of civic participation. For instance, this week the need for an anti-SLAPP statute hit close to home. The Old City Civic Association (“OCCA”) recently disbanded due to several lawsuits which made carrying insurance too expensive. This happened because developers sued a civic association out of existence for exercising their First Amendment right to public participation.

By way of background, the Philadelphia Zoning essentially works like this: neighborhoods in Philadelphia have what is called an “RCO” meaning “registered community organization.” Developers who want a variance must, under the new Philadelphia Zoning Code, meet with the RCO in order to determine how the community feels about the project. This is because part of obtaining a variance is demonstrating that the proposal will not be detrimental to the public interest. Developers or residents who feel they are being treated unfairly by the RCO will often file a lawsuit against the RCO. See, e.g. Vurimindi v. City of Philadelphia, et. al., in which the 3rd Circuit held that the District Court properly denied the plaintiff leave to file amend his complaint against several RCOs and individuals, after being given several opportunities to state a valid claim.

RCOs are usually comprised of unpaid citizens who want to have a voice in what is build in their neighborhoods. With no insurance, any person who serves on the board of directors or on the zoning committee risks getting sued individually and incurring a significant amount in legal fees. This means that anyone who does not risk having to defend a lawsuit against them will probably not want to sit on an RCO.

A strong anti-SLAPP statute needs to protect other forms of participation, including civic engagement, like the engagement RCOs engage in. 

Why does Pennsylvania need an anti-SLAPP statute?

The litigation process itself is punitive. If a a lawsuit gets passed the pleadings stage, the participants are opened up to the civil discovery process. This means your private emails, Facebook pages, Twitter account, bank statements, and just about every other aspect of your life is subject to scrutiny. The discovery process, in addition to being incredibly invasive, is also very expensive. One deposition transcript alone can cost about $800, in addition to the lawyer fees.

Anti-SLAPP statutes are meant to prohibit this by limiting the discovery process, screening cases for frivolity at the outset, and imposing legal fees on the plaintiff if the lawsuit is found to be frivolous or simply trying to chill a person’s First Amendment rights.

A sensible anti-SLAPP statute will (1) screen lawsuits involving public participation for frivolity; (2) limit the discovery process until a court has determined the suit has merit and not just filed to chill free speech; and (3) will award costs, fees, and other relief to the prevailing party of an anti-SLAPP motion; and (4) discourage frivolous anti-SLAPP motions from being filed. 

What laws do we currently have in Pennsylvania to protect against SLAPP lawsuits?

Pennsylvania has a narrow anti-SLAPP statute found at 27 Pa. Cons. Stat. §§ 7707, 8301-05. The statute only applies to those petitioning the government over environmental issues. It does not apply to other frivolous or SLAPP litigation.

The Pennsylvania State House is currently considering additional protections under this statute in House Bill 1286. The proposed amendment carves out immunity for:

A person who acts in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of Pennsylvania in connection with enforcement or implementation of law or regulation related to an issue in the public interest shall be immune from civil liability in any action except where the communication to the government agency is not genuinely aimed at procuring a favorable governmental action, result or outcome.

From there, discovery is stayed until a court determines whether or not the case is frivolous, and can award attorney’s fees to the prevailing party.

Unfortunately, the proposed bill does not go nearly far enough. For example, it would not address any of the SLAPP suits I mentioned above, since none of the defendants were acting “in connection with enforcement or implementation of law or regulation related to an issue in the public interest.”

In my view, the definition should be broader like in Nevada or California. Nevada’s proposed anti-SLAPP statute protects “a good faith communication in furtherance of the right to petition, or the right to free speech in direct connection with an issue of public concern”. California’s anti-SLAPP statute covers any lawsuit involving a “person’s right of petition or free speech under the United States Constitution or the California Constitution”. However, as described more in detail below, an anti-SLAPP motion should also penalize a defendant who files one frivolously. 

What about the Dragonetti Act? Isn’t that enough?

Pennsylvania also has the “Dragonetti Act”, 42 Pa.C.S.A. § 8351(a) which reads as follows:

A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]:

He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and

The proceedings have terminated in favor of the person against whom they are brought.

While the Dragonetti Act might seem like a venue to combat SLAPP suits, it really isn’t. For instance, my colleague Matthew Weisberg, wrote that a Dragonetti Suit may be applicable in an anti-SLAPP setting because: “[w]hile one could imagine a so-called SLAPP (strategic lawsuit against public participation) defamation action as evidencing an improper purpose (to silence by litigation a citizen’s public complaint), or likewise with a vindictive divorce ending in countervailing litigation, it is not so easy to envision many other types of lawsuits being brought for an ulterior purpose.”

However, a critical problem with the Dragonetti Act is that a claim cannot be made until after the prior proceedings have terminated in favor of the party who wishes to proceed with a Dragonetti Act claim. That is, a Dragonetti Act claim is premature if there is still a chance that the original plaintiff might yet prevail at trial or on appeal. In other words, a SLAPP defendant may be dragged through a significant amount of litigation before the claim is ripe.

Further, a Dragonetti successful plaintiff may only recover for:

(1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings

(2) The harm to his reputation by any defamatory matter alleged as the basis of the proceedings

(3) The expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings.

(4) Any specific pecuniary loss that has resulted from the proceedings.

(5) Any emotional distress that is caused by the proceedings.

(6) Punitive damages according to law in appropriate cases.

Title 42 Pa. C. S. § 8353

The problem is a Dragonetti plaintiff can only recover fees spent defending the original SLAPP suit – not new fees incurred prosecuting the Dragonetti claim.

The practical implication is that not only does a defendant have to win the underlying SLAPP suit first, which could be very expensive, but they then have to prosecute another separate lawsuit which will incur more fees.

For most, the cost of two lawsuits just isn’t worth it.

What kind of anti-SLAPP statute makes the most sense?

As it currently stands, many states have many different laws discussing SLAPP suits. For example, California and Oregon have some of the best-known and best-tested statutes in the nation. These statutes stay other proceedings, preventing costly discovery, and entitle aprevailing anti-SLAPP defendant to costs and attorney’s fees.

Nevada is currently looking at Bill 286, which would provide that:

If an action is brought against a person based upon a good faith communication in furtherance of the right to petition, or the right to free speech in direct connection with an issue of public concern:

(a) The person against whom the action is brought may file a special motion to dismiss; and

(b) The Attorney General or the chief legal officer or attorney of a political subdivision of this State may defend or otherwise support the person against whom the action is brought.
…

3. If a special motion to dismiss is filed pursuant to subsection 2, the court shall:

(a) Determine whether the moving party has established, by a preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern;

(b) If the court determines that the moving party has met the burden pursuant to paragraph (a), determine whether the plaintiff has established by clear and convincing evidence a probability of prevailing on the claim;

In terms of its scope, this law would protect both bloggers and citizens engaged in civic participation. 

Procedurally, court has to make a preliminary determination of whether the lawsuit has any merit before allowing it to go forward. The state also has to appoint lawyers if the matter is of public concern. If the motion is granted, and the court finds that the suit has no merit:

(b) The court shall award, in addition to reasonable costs and attorney’s fees awarded pursuant to paragraph (a), the amount of $10,000 to the person against whom the action was brought.

The statue also protects plaintiffs with legitimate gripes, too. If the court determines that the SLAPP motion was frivolous or vexatious, the plaintiff is entitled to $10,000 and attorney’s fees from the defendant.

Such a statute is evenhanded to both plaintiffs and defendants, and will limit filing special SLAPP motions except in instances where it is warranted. 

In my opinion, this approach makes the most sense. I had a conversation with Max Kennerly last week, where he correctly pointed out that plaintiffs still need to be able to get in the courthouse if their suit is meritorious. I agree with him. 

Nevada’s proposed anti-SLAPP statute protects the rights of bloggers and those involved in civic participation by closing the discovery process early. However, if a frivolous anti-SLAPP motion is filed, it also punishes the defendant for filing one. This is fair to both plaintiff’s and defendants. I think it is the best of both worlds. 

The Pennsylvania legislature ought to look to Nevada’s proposed anti-SLAPP legislation and adopt something similar. Right now residents of the Commonwealth have very little protection against SLAPP suits, which is a travesty to the right of public participation.

“Oh, get a job? Just get a job? Why don’t I strap on my job helmet and squeeze down into a job cannon and fire off into job land, where jobs grow on little jobbies?!”

Along with running my law practice, there are other things that I do in my spare time. Believe it or not.

To name a few, I am on the Board of Directors of the Fishtown Neighbors Association (FNA), along with the FNA Zoning Committee. FNA is the registered community organization (RCO) for my neighborhood, meaning that we are responsible for providing community input to various legal bodies about proposed development. I also serve on the Board of Directors for the Fishtown Area Business Association (FABA), which is the entity responsible for representing the interests of business owners in the Fishtown, East Kensington, and Old Richmond areas of town. Sometimes my involvement in these organizations involves real legal work, like when I represented a few neighbors in an effort to save historic Kensington bank buildings, which was successful.

I’m also active with the Pennsylvania Bar Association. Specifically, I serve on the Federal Practice Committee, Unauthorized Practice of Law Committee, and the Civil and Equal Rights Committee. Through these committees, we as a bar association take positions on various legal issues and proposed legislation.

This week has been crazy. It looked like this:

Monday: Confer with FNA Board to discuss PTSSD grant, which involves a significant amount of money coming into the neighborhood for civic projects
Tuesday: 6:30pm – 9:00pm – Hosted an FNA Zoning community meeting to take a vote by the neighbors on a large scale residential development proposal.
Wednesday: 12:00pm – 5:30pm – Testified before the Zoning Board of Adjustment on behalf of FNA about proposed development along the Delaware Avenue Waterfront (the largest development ever proposed in Philadelphia), and its impact on the Fishtown neighborhood.
6:30pm – 9:00pm: Hosted a Fishtown Area Business Association meeting, which was attended by over 60 local business owners to discuss happenings in the neighborhood (and drink a few beers).
Thursday: Attend FNA General Membership Meeting to discuss happenings in the neighborhood with the community, including all of the things that happened earlier in the week.
Friday: Quizzo in my local watering hole, Luke’s Bar.
Saturday: 1:00pm – 3:00pm – Station table at the Trenton Ave Arts Festival for FNA.

In the interim, I am also volunteering for the PA Bar Association’s Federal Practice Committee to discuss and take a position on proposed amendments to the Federal Rules of Procedure. Oh, and I am getting inducted into the First Amendment Lawyer’s Association this summer thanks to Marc Randazza. (along with some other big news I’ll save for July).

Keep in mind none of this is paid. I haven’t been home until after 9pm every single day this week. I even missed my favorite TV show, NBC’s Revolution. (thankfully the new episode is available online).

In the past week I have given out a significant amount of business cards, and we’ve already started getting calls from new potential clients. Oh, and between doing all this fun stuff, I have found time to do real, actual legal work and sign up new clients.

I’m not trying to grandstand here, but there are many opportunities to showcase yourself in your community. Like Eric Turkewitz wrote:

Being involved in the community isn’t a bad way to have people learn who you are and what you do while also providing muscle, brains or perhaps some financial support so that kids can, for example, take part in the national pastime. It’s the same approach used by generations of professionals and businesses of all stripes.

That’s right, this year’s winner of the best marketing technique is the same one I discussed back in 2010 when I got disgusted by all the marketeers pimping the “leads” they could get me for new cases from their attorney search services.

And oh, I know. Your parents lied to you when they told you more education guarantees more money. Then your law schools lied to you when they told you there are countless jobs, all of which pay a lot of money.

You’re right.

Now get over it.

You want specifics? Write an article for your bar association’s publication. Start a blog (this blog cost me nothing to start, and it costs me nothing to maintain). Ask the local newspaper if you can write an article about something legal related. Join your state or local bar association and get involved in a committee. Join a civic association or two. Coach Little League like Turkewitz does. Take on a case pro bono concerning an issue that is important to you. Show up to a business owner’s association meeting. If one doesn’t exist, consider creating one. Email a lawyer who focuses on a practice area you are interested and take them to lunch.

Anything you do that gets you in front of people and increases your network will increase the likelihood that people will think you’re someone worth paying attention to and hiring. This will help your job prospects, and prospects of picking up clients. You are more valuable to a potential employer if you’re someone people actually care about, and potential clients want to hire. It won’t happen overnight, though.

Admittedly, I can’t name anything specific that will get you a job. But to quote Scott Greenfield, there is one size fits all advice: no one will ever improve their lot by sitting on the couch in their parents’ basement, munching on Cheetos and playing Mortal Kombat, whining about their life and cursing others for their misery.

Or, there is always this:

Catholic Social Teaching is firm that abortion is morally wrong, and many view it as infanticide. As Catholics, we are supposed to promote what is called a culture of life. This includes opposing abortion because, according to the Church, “[l]aws which legitimize the direct killing of innocent human beings through abortion or euthanasia are in complete opposition to the inviolable right to life proper to every individual; they thus deny the equality of everyone before the law.”

So it probably comes as no great surprise that I was morally and ethically outraged at the Kermit Gosnell case. For anyone who doesn’t know, Gosnell was convicted of killing babies who were born alive during abortion procedures. I will say that again – Gosnell was convicted of killing babies who were born alive during abortion procedures. And he did it right in my beloved City of Philadelphia. I am left without words to describe such an atrocity committed so close to me.

When I heard about the Gosnell verdict, my reaction was primal. It was angry. The first thought that came into my head is “I hope he gets the death penalty, that son of a bitch.”

But should Gosnell be executed?

After such an emotional response, that Catholic Social Teaching started whispering in my ear again. In Evangelium Vitae (The Gospel of Life), Pope John Paul II wrote:

This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society. The primary purpose of the punishment which society inflicts is “to redress the disorder caused by the offence.”(46) Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.(47)
…
Modern society in fact has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.

On that topic, last year I read a book by Chris Hedges called “Empire of Illusion: The End of Literacy and the Triumph of Spectacle” on the same topic. Hedges took the “Culture of Life” theme and suggested that America has become a “Culture of Death.” Hedges wrote that “[a] culture that does not grasp the vital interplay between morality and power, which mistakes management techniques for wisdom, and fails to understand that the measure of a civilization is its compassion, not its speed or ability to consume, condemns itself to death.”

I agree.

So where does this leave us with Gosnell? On the one hand, Gosnell committed one of the worst atrocities a person can commit. That is obvious. It’s tragic. And it’s horrible. His actions are the reason people are outraged by abortion in the first place.

So should we kill him in response?

After much thought, I am inclined to say we should not. Executing Gosnell will not foster a culture of life. Killing another human being, no matter how evil, simply undermines the basic moral reason people are opposed to abortion in the first place. Gosnell is behind bars and the world is safe from him.

Killing Gosnell would only serve only as revenge, and achieve nothing but furthering a culture of death.

“Remember folks, filing defamation lawsuits can have unintended consequences.”

A big round of applause for Marc Randazza and Eric Turkewitz – the attorneys who defended 33 bloggers accused of defaming Joseph Rakofsky. Yesterday the New York Supreme Court dismissed Rakofsky’s ridiculously stupid lawsuit for a number of reasons. A bunch of other talented attorneys also defended the case, including John H. Teschner and David Brickman. (Teschner is too cool for a lawyer website.) Kudos to them, too.

Of course, another huge round of applause for bloggers Scott Greenfield, Brian Tannebaum, Carolyn Elefant, Canada’s Antonin Pribetic, George Wallace, Jeff Gamso, Mark Bennett, Above the Law, Philadelphia’s own Maxwell Steed Kennerly, Mirriam Seddiq, Eric Mayer, Jamie Koehler, bannination.com, and others who chose to fight this silly lawsuit instead of paying Rakofsky $5000 and saying they’re sorry like, say, Lori Palmeri did. By fighting the case instead of paying a settlement because such a thing would be convenient, the bloggers put their personal lives on the line when push came to shove in defense of the First Amendment.

It’s always nice to see that integrity still matters to some.

So… what happened? The court dismissed the case but did not sanction Rakofsky. In dismissing the case, the court found that:

Rakofsky does not deny Judge Jackson made several comments that he was not competent and too inexperienced to provide a proper defense to Deaner in a murder trial. In fact, during the trial, Judge Jackson had two side-bar discussions with Deaner pointedly inquiring whether he was satisfied with Rakofsky’s competence and lack of trial experience. The gravamen of Rakofsky’s argument is that there was no causal connection between the mistrial.and his competence and inexperience.
…

The clear import of Judge Jackson’s rulings was to excuse Rakofsky due to his lack of competence and inexperience to defend Deaner in a murder trial. It is acknowledged that the Deaner murder trial was Rakofsky’s first trial in a foreign jurisdiction and with which he was totally unfamiliar, and Judge Jackson was vigilant in protecting Deaner’s right to effective assistance of counsel. Significantly, the reported fact that Judge Jackson declared a mistrial in the Deaner case was not defamatory because even Rakofsky initially celebrated the mistrial as a positive development in his career. In other words, defendants’ report that a mistrial occurred does not constitute defamation.

Like Scott Greenfield, I was initially a bit underwhelmed by the court’s decision not to impose sanctions. Scott wrote that:

the notoriety of this matter, from its inception to the litigation, offered enormous opportunity for a court, a judge, to explain to a new generation of young lawyers, digital natives who see what was once a learned and honorable profession devolve into the gutter of deceit for their own self-interest, and who will use the courts to burden, if not shut down, criticism of their ways, that the law will not tolerate them.

But Greenfield goes on:

Yes, Rakofsky burdened the defendants with the expense of having to defend against his gazillion allegations, and except for the handful of defendants who lacked the fortitude to put integrity ahead of convenience, the rest of us were prepared to suffer the cost and annoyance because integrity matters.  And so the defendants won.

Maybe, just maybe, the court determined that Rakofsky had sanctioned himself far worse than a judge could.

The big question is this – is Rakofsky any better off now than he was now that fateful day in April 1, 2011, when the Washington Post published it’s story saying “D.C. Superior Court judge declares mistrial over attorney’s competence in murder case”?

Did his lawsuit do anything except attract more negative attention to himself?

Well, remember Marc Randazza’s brilliant Motion to Dismiss? Marc argued:

Two years after filing suit, in addition to all his earlier notoriety associated with the Deaner mistrial, Rakofsky will now forever be known as the young lawyer who sued the internet and lost. While the Deaner trial would have been all but forgotten by this point, Rakofsky v. The Internet will remain infamous for many, many years to come.

The score: The Internet: 1, Rakofsky -2.

Great job, Joseph.

I am very sorry that the Streisand Effect rained on your parade.

Conference room built, files organized, and things going well, we decided it was finally time to revamp the website. Note that the website was not a cause, but more of an effect.

Will it get us new clients? Probably not. Will it infuse our practice with awesome? Doubtful. Is it cool? Well, decide for yourself. Here it is:

www.fishtownlaw.com

So… what did we look for? Perhaps search engine optimization? Someone to tell the world that we’re “aggressive, caring, passionate zealous advocates?” A way to list hundreds, no thousands, of practice areas? Perhaps LexisNexis to guarantee us bajillions of page views, analytics, and all kind of other stuff? The awesomeness of Scorpion Design?

No.

We decided to stay local, and keep it simple. On the local end, we used Fishtown’s own Beth Blinebury Design. Not only is Beth incredibly talented and has good taste in beer, but it makes sense for The Fishtown Lawyers to utilize as much local talent as possible, whenever possible. We also liked Beth’s story about starting her business as a hobby, and it evolving into full time work. The sketches were designed by Fishtown’s own Jeffro Kilpatrick.

In terms of design, we wanted a website that looked professional, but we certainly don’t want to wear hot pants on the boulevard. Rather than hire a marketeer who would increase our Google results, or spam every blog in the country, the goal was a professional website that matches both our personalities and ethical standards. I think Beth delivered.

Ok, so what’s my point? Perhaps Eric Turkewitz said it best last week:

I am here to announce that the best attorney marketing — other than the obvious one of doing a good job for  your clients, who in turn refer you to others, a tactic that seems to get overlooked by the marketeers — is the tactic that is close to home. Do something in your community. There are approximately one gazillion ways to do this.

We decided to keep our website in the community, rather than focus on all the bells and whistles. I’m pleased with the result.

And maybe, just maybe, personal relationships continue to be more important than how awesome you look on the web.

Protip: don’t do anything that might upset those who hold the keys to seeing your client. And also control every moment of his day.

.@jrushie It never ceases to amaze me how little lawyers think about their interactions with guards.

It seems like common sense when you say it like that. How you interact with the guards might not be a legal paper or proceeding, but how you treat them could affect your client’s interests. So treating the guards right is important.

Her Tweets took me back to an exchange I had with Chris Bradley a few weeks ago. Chris wrote a piece about how he just showed up to a deposition, having no idea what he was doing, but sometimes showing up is enough. I started to take him to town on it, but I ended up writing a sort of incomplete, half-assed blog post about how to defend depositions. Alex Craigie was kind enough to remind me that my summary was inadequate with some tips of his own. Scott Greenfield mentioned the discussion today on his blog.

The more I think about it… it was never about how to take and defend depositions. And my response to Chris missed the boat. It ended up being another inadequate pieces about depositions.

This is the piece I should have written: it all matters. That is why you don’t just show up.

How you talk to the bailiff. What you do at the settlement conference.  How you treat the court staff. The questions you ask at the depositions or don’t ask.

It all matters. All of it. Every single interaction.

Sometimes lawyers look at the profession as “task based.” Show up to a conference. File a motion. Draft a complaint. Attend a conference. Bradley looked at this deposition as a task – show up, get through it, hope nothing bad happens. That is how we were trained, in some sense. Do the assignment, turn it it, and wait for the teacher to give you the next assignment.

What Bradley didn’t do was analyze the issue as a whole. A deposition is just one minor event in a series of events. The deposition is a small battle. But the litigation itself is a war, which is a series of small battles that ultimately lead up to a result for your client. And as the lawyer, you’re the general. All the small battles affect the war one way or another, so each one has to be treated as very important, and with an understanding and strategy of the war as a whole.

For example, last year Eric Turkewitz wrote about a per diem associate hired to cover a routine status conference. The per diem associate was busy, too, and dropped the conference on another attorney. The second attorney signed a stipulation agreeing to produce certain things in discovery that no one had agreed to. The court said the stipulation was binding. Oops.

@tcita recognized this. Even though the guards aren’t going to be at trial, how she interacts with them is going to influence her client’s life. So it’s important. Chris, on the other hand, was content to show up to the battle unequipped. Not knowing what, if anything, his contribution would have on the war – his client the casualty.

It’s not hard to view tasks like they are homework assignments. However, I am finding that it is hard to be a good lawyer – to understand that each and every interaction, every letter you write, every conference you attend, and every single thing you do affects the war as a whole. Every interaction, every telephone call, every email, and every conference. Meaning all of your moves, words, and actions have to be done with purpose and precision. Every single thing. Before you take any action, you have to ask yourself this: “How does it affect my client?”

That is why you can never “just show up”, because it all matters to your client.

This was me sitting on the ice at a Flyers / Jets game, toasting a Molson Canadian to Antonin Pribetic. Tickets courtesy of Adam Green.

I love hockey. There are very few sports that are as crazy, violent, and fun to watch. There is nothing more fun than watching the Flyers beat down the Rangers or the Devils. You either get hockey, or you don’t.

Which is why hockey fans are some of the most passionate fans in the world.

And yeah, sometimes I get angry with the management and the players. We call for people to be fired, players to be benched, and regime changes.

Even though we can be a little mean to our sports franchises, especially here in Philadelphia, the coaches and the players make a significant amount of money – enough to console their hurt feelings, I would imagine.

Last night I was very surprised to learn that the Maple Leaf’s former General Manager, Brian Burke, filed a lawsuit against several anonymous internet commenters who made anoymous comments about him on hockey message boards.

According to the “Notice of Civil Claim“, an anonymous internet commenter falsely inferred that Burke had an extra-marital affair with Hazel Mae and may have fathered her child. In my opinion, the statement is very obviously parody and not even the stupidest person in the world could actually believe it, especially when you take into account who said it, the hyperbolic language, and the fact it was made on a hockey message board. (quoting the comment verbatim is messing up the formatting of my blog post. But you can click and read it yourself. Thanks, WordPress.)

Legal issues aside, here is the big question – what is Brian Burke trying to achieve by suing NHL fans? According to Burke’s lawyer, Peter Gall of Heenan Blaikie LLP, “[a] lot of people think that they can with impunity say whatever outrageous things on the Internet and nobody’s ever going to be able to find them or hold them accountable. Brian is going to hold them accountable.”

Um…

The reason General Managers of hockey teams make a lot of money is because NHL fans like me and this anonymous commenter on the internet pay big bucks to watch the games, buy the jerseys, and subscribe to the expensive TV packages. People comment about the NHL on message boards because they love the sport. Part of that commentary is inevitably going to be criticisms of the coaches, the players, and the management. We comment because we care.

This type of lawsuit sets a chilling atmosphere for sports fans who comment, often stupidly, online. Is that what the NHL really wants? What’s next – coaches, players, and management suing hockey fans for defamation because they are critical, or say things that hurt their feelings? Isn’t hockey a contact sport?

And do you think any NHL team is going to want to hire a General Manager who sues NHL fans – the same fans who put money in the league’s pocket? If my Philadelphia Flyers did that, I would boycott the team and refrain from commenting about them. I bet other fans would do the same. The people who comment about the NHL are the same people putting money in the league’s pocket – which goes to the players, management, and guys like Brian Burke.

So, I  hope Brian Burke has been told what the Streisand Effect is. Because I have a feeling Mr. Burke is goingto learn about it very quickly. While I doubt any of the internet commenters damaged his career or reputation, this lawsuit just might.

h/t Adam Steinbaugh.

And just because:

Maury is great. But he has no jobs for you.

Alright, I’ve heard. There are too many lawyers and not enough jobs. Law schools painted a rosy picture about how much money first year lawyers make and how easy employment is to find. And apparently law students were dumb enough to rely solely on their law schools when deciding whether it is a good idea to borrow hundreds of thousands of dollars and hand it over to them. Adding insult to injury, the young lawyers were left completely unprepared to practice law even after getting that fancy legal education, because most law professors have never practiced a day in their lives and are in no position to teach anyone else how to.

So now what?

Keith Lee over at Associate’s Mind said this:

If new lawyers cannot solve the problem of their own millennial malaise, how do they ever expect clients to trust them with their problems?

Of course, Keith’s post made a few millenials sad. MA (who?) was offended, and thought Keith try and help out, rather than, um, tell them the truth:

So the lucky few like Mr. Lee should try to offer real solutions to graduates. How did you find your job, Mr. Lee? How might your experience help others?

Pull up a chair, kids, it’s story time…

The year was 2010. I got a call from a girl I used to clerk with while working at AnapolSchwartz who just finished law school. At the time, I was working as an associate at a small firm in suburban Pennsylvania as an associate.

“Hey Jordan, it’s Lynda. You remember me from Anapol, right? Do you think we could talk? Listen, the market is brutal out there and I can’t find anything. Do you think I could come in and work in your office? I’ll do it for free. I just need something to do while I look for a job. I’ve called pretty much everyone I know.” She had just graduated from a T2 law school and had slightly above average grades.

I went to my boss and asked if that would be okay. Me and my boss agreed we could use some help, but it wouldn’t be fair to make her work for free, so we decided to pay her $15 an hour on a part time basis and then increase it if she proved to be valuable. Lynda didn’t have an office – just a small desk with a computer on it. It was the only space we had available.

Lynda proved to be a capable attorney and a valuable asset. She was loved equally by the attorneys at the office and by the staff. Soon she was working close to 40 hours a week, but we all knew she was looking for a “real” job that would provide health benefits and a salary big enough to repay the student loans. We bumped her pay to $20 an hour, and were hoping to be able to hire her as a full time associate at some point. Lynda never once complained about the situation, and sponged up every opportunity to learn stuff – “I’ld love to watch the trial, even if you guys don’t pay me. Can I just watch the deposition? I know the client won’t pay for that, but I’d love to see it.” (we always just paid her anyway).

After about three or four months working with us, she came into my office and told me great news: she was interviewing for a temporary position to clerk for a federal judge. Since the judge was retiring, the position was temporary, and he was was willing to overlook the fact she didn’t graduate at the top of her class. Lynda asked if me and my boss could write her letters of recommendation, which we gladly did. She got the clerkship because some of her experience working with us was similar to the cases the judge was overseeing.

While Lynda was clerking, we stayed close. She remained a constant sounding board of mine to bounce ideas off of.

Once it became evident that the federal clerkship was going to end, Lynda started looking for another job. As luck would have it, one of our secretaries left my firm and had taken a position with prestigious a mid-sized firm. The secretary knew the firm was looking for an associate and recommended Lynda. Me and my boss also wrote Lynda glowing letters of recommendation, and lo and behold, she got hired at the firm. She is still there today.

What’s my point?

Lynda could have sat around and complained about being unemployed, underemployed, or written a scam blog. She could have sat on the couch, hoping that opportunity would fall into her lap. But she didn’t. She turned over every nook and cranny, and took advantage of every opportunity that came her way. Making $15 an hour in a small law firm without an office isn’t exactly glamorous. But she turned it into a federal clerkship and then a full time law gig. Now Lynda has the type of job all the scam bloggers feel they are entitled to.

Was she lucky? Did she fall into it?

Nope.

I know this is painful for you to hear, but she pulled herself up by the bootstraps. It took time, effort, and hard work.

The point? If you want to make things happen, get off the couch. It’s that easy.

You’re a lawyer, figure it out.

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.

What is a deposition?

A deposition is not a buch of lawyers getting together to talk about feelings.

A deposition is an examination that is under oath. It does not take place in a courtroom before a judge, however. It usually takes place at Starbucks in your conference room with a court reporter. The rules of evidence are typically relaxed to only include privilege and “form objections”, meaning a lawyer defending the deposition can only object if the question is confusing or will result in a breach of a privilege. If the question is just confusing, the lawyer taking the deposition may rephrase the question. The lawyer defending the deposition can only instruct the witness not to answer the question if it will divulge privileged information, trade secrets, or violate a court order. This means you normally won’t see “Objection – (hearsay, relevance, foundation, etc)” unless it’s a trial deposition.

The courts, particularly federal courts, have clamped down on coaching witnesses through standing objections. Meaning a lawyer may only say “Objection to the form of the question”, and the witness can try to answer it. A lawyer may not say “Objection. The witness already testified that the light was red. She said it three times. You’ve already asked that question, and if you ask it again, she is going to tell you that the light was read. Clearly, her testimony is that the light was red. Okay, go ahead and ask the question.” A “standing objection” often impermissibly tells the witness how to answer the question.

Courts are clamping down, since they are tired of depositions looking like this:

Because of the way depositions are structured, lawyers have a great deal of latitude in depositions without having to worry about saying something that will come off poorly to a jury. A great deal of information can be uncovered by a deposition.

When taking my first deposition, my boss James gave me some advice: “Be inquisitive. Um, really inquisitive.” A deposition is one of the most powerful tools a lawyer has at his or her disposal.

They are not to be taken lightly.

So… if I’m defending the deposition, why can’t I just show up and look lawyerly?

Because as an attorney, you have two roles. Attorney and counselor. This is my view, take it for what it’s worth…

1. Counselor 

First, and most importantly, your major role is preparing your witness. 99% of defending a deposition properly is the preparation. If you prepare your witness properly, you should be able to just be a potted plant, to borrow a line from Max Kennerly. So how do you do that?

As a counselor, one of your roles is to ensure that your client tells the truth. If your client says “The light was red, but it will help my case if I say it was green, so I’m going to say it was green” you cannot let that happen. It is imperative that your client understands that this examination is a proceeding under oath, and that perjury is a crime. If your client insists on perjuring themselves, consider withdrawing from representing that client. Do not elicit testimony that you know is false – if you do that, you’re putting your own law license and worse on the line. It is imperative that you know the case, warts and all, and explain to your client that they must testify truthfully, and you will not allow testimony that is perjured.

What Chris recommended – just showing up blind to the deposition – is very dangerous for this reason (and many other reasons). Typically during litigation, the parties have exchanged documents. As counselor, it is imperative that you have reviewed the documents that were exchanged, and that your witness does not testify inconsistent with them. For instance, if the examining attorney asks “Do you have any bank accounts?” and your client says “No”, they are going to be in a heap of trouble when the examining attorney says “Then what is this statement from Bank of America I am holding?” Before hand, it’s important you are familiar with documents that were exchanged.

It also bears noting that states like Pennsylvania confer a limited, qualified privilege to withhold documents that pertain to surveillance until after the deposition. Morganti v. Ace Tire & Parts, Inc., 2004 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. County Ct. 2004). This means you may want to review your client’s social media pages with them before the deposition.

That said, there are good ways and bad ways to testify. This is called “polishing testimony.” Let’s say the attorney doing the examination says “Why did you leave your job?” A bad answer is “Ugh, they made me start at 9am, which is like so early, and the guy across the hall from me ate this smelly Indian food for lunch, it was like, so distressing.” A better answer is “I wasn’t happy with the atmosphere.” You are not instructing your client to lie, but simply to convey a thought in a way that isn’t offensive or, well, stupid. It’s important that you counsel your client how to answer questions directly, truthfully, and in a way that expresses the thought in a way that makes sense, and doesn’t detract from the issue at hand.

Similarly, if the question is “What did you eat for breakfast this morning?”, there is no need to answer “Well, I woke up this morning super hungry. I was kind of stoned last night, you know? So yeah I went in my kitchen and all the milk was bad… no cereal for me! So I headed downtown to WaWa but they were all out of sausage biscuits. So I got a cheese biscuit, and it was terrible. Have you ever tried one of those?” Simply answer the question, no more, no less – “I had a cheese biscuit.” It is your goal to teach the client how to answer questions directly.

In the same vein, your client also has to learn that losing their cool will only hurt their case. How would you like this to be played before a jury?

Finally, a deposition can have ramifications in other contexts. If your client is going to testify that he or she committed a crime, you should consider referring your client to criminal defense counsel to advise whether taking the 5th Amendment is advisable. Sometimes in a civil proceeding, it is better to plead the 5th than incriminate yourself under oath. Your client has to understand that a copy of this transcript can, and may be forwarded to appropriate authorities. Again, keep in mind that a deposition is testimony under oath. Bill Clinton lost his law license for lying in a deposition. What is said in a deposition can have very serious ramifications for your client. It is your duty to counsel them about those ramifications.

Chris writes that:

But that wasn’t front and center at the time. Front and center was the document on my desk, a “Notice to Take Oral Deposition in Aid of Execution,” which basically means opposing counsel would ask some questions, the answers to which might help him collect on the default judgment.

Was opposing counsel kind enough to tell Chris what he was going to ask before hand, and why?

Hell no. You have no idea what questions the other side is asking, and why they are asking that. The others side has no obligation to tell you what they are going to ask about before hand. In other words, the deposition might be under the guise of one thing in order to get information about another thing. It’s your role to try and figure that out, and if appropriate, to stop it from happening. You may be defending a case involving child support, but the other side is trying to use the deposition to build a case for defamation. It’s your role to evaluate these things.

In my own practice, I have created a guide about how to testify in a deposition. I give a copy of this guide to my witnesses before the deposition, and we go through it in great length before the deposition.

You never, ever ever just walk into a deposition without having done appropriate preparation.

2. Advocate

Now you’re at the deposition itself. Your witness is well prepared. She knows not to ramble about her breakfast, and how to convey thoughts in a way that is appropriate.

Does this mean you can sit on your iPhone and play Angry Birds? No.

First you need to figure out what type of objections are permissible. They vary from state to state, and even in local District Courts. If standing objections are permissible in your jurisdiction, you may want to consider using them. However, if your’e in a federal court, you’re probably smart enough to know that standing objections can get you sanctioned, or worse.

Once you know that, you have to listen for instances when you should instruct your client not to answer. This will normally be limited to divulging a privilege (“What did your attorney tell you?”), violating a court order (“Joe, I’m going to instruct the witness not to answer. We have a protective order limiting the testimony to the issue of the forum selection clause. I am not going to allow any testimony outside of that.”) or divulging a trade secret. (“What ingredients go into making Colonel Sander’s Original Recipe?”). If you instruct your witness not to answer, you had better be sure to have a basis for doing so when the examining party files a motion to compel. “Your Honor, some very damaging testimony was about to come out which would have hurt my case…” will get you sanctioned.

You also need to know the procedure, which can be court specific. In some jurisdictions you can call the judge and get a ruling on the spot. In other jurisdictions, you need to file a motion to compel, and have a do-over.

After, your duty is to evaluate the testimony and the witnesses. If your own client came off poorly in the deposition, it’s your role to explain that the testimony may not look good before a jury. Check out Bill Gates:

I can only hope his lawyers saw that deposition and said “I’m not sure I want to put you on before a jury. This came off very poorly.”

You also have to figure out if you want to put on your best case at the deposition and what you want to save for trial. If you’re certain the case is going to trial and isn’t going to settle, you as the lawyer need to make strategic determinations to hold back on certain things. On the other hand, if you think the case could settle, it might make sense to show the other side your hand.

It depends on the circumstances. You’re the Chessmaster, and your client is the king.

Finally, when you defend a deposition, what is the scope of your engagement? Do you have to enter your appearance (meaning you are on the hook for the entire case) in order to properly appear at the deposition? Can you limit your engagement to just the deposition? In most jurisdictions, you have to enter your appearance in some form to be able to say anything at a deposition. Be sure that you understand, and your client understands, what your role is and what it is not. You can’t just show up to depositions and start making objections because you feel like it. It doesn’t work like that.

In closing…

This is a very short, not very comprehensive guide. Personally, I took an intensive NITA course on depositions, which lasted about a week. If you’re going into civil litigation, I recommend taking an intensive CLE on the subject. There are many books written about taking and defending depositions (none of which advise you to just show up and maybe say stuff).

The best advice I can give you? You can’t just show up. That will get you into trouble, and more importantly, your client into trouble. If you’re on your own, sit down with an older attorney and rack their brain about how to properly defend a civil deposition. And if you’re not competent to do such a thing, refer the case to someone who is. Otherwise, you might end up doing more harm than good to your client.

Suggested reading:

Taking and Defending Depositions
Winning at Deposition
The Effective Deposition

And just for the heck of it… sometimes it all just goes very, very very wrong: