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Practice Tips, Courtesy of Rakofsky v. The Internet

by Carolyn Elefant on June 7, 2011 · 7 comments

in Ethics & Malpractice Issues, Litigation & Courts: Policy and Practice, Mistakes/What NOT To Do

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(updated, 7 am 6/7/11 to change a few points)

As I mentioned a few weeks back, I’m one of the 81 defendants who’s
been sued by Joseph Rakofsky. The post that won me an admission ticket to the front lines of this lawsuit tracked a theme common to 45 other posts I’ve written: what not to do as a solo.

Since teaching other solos about conduct to avoid is what brought me into this lawsuit, it seems fitting then that I also use the lawsuit itself as a source of lessons for solos. The first motion filed by my attorneys contains a treasure trove of do’s and don’ts for court filings. Here are just a couple of quick examples:

DON’T oppose a motion seeking pro hac vice admission for a lawyer with a national reputation on the subject matter of the lawsuit when you’ve availed yourself of pro hac vice admission on multiple occasions (referencing Rakofsky’s intention to oppose pro hac vice admission of Marc Randazza as counsel; Motion at 2).  And DON’T think that a judge will miss the irony.

DO use neutral, objective language and solid evidence when raising hotly-charged and potentially sensitive claims regarding ethical misconduct. (relates to portions of the complaint describing Rakofsky’s websites depicting offices in Connecticut, New York and Washington D.C. though Rakofsky is only licensed in New Jersey; Motion at 3-4).   Many lawyers raise frivolous charges of ethics misconduct in pleadings as a way to intimidate or gain leverage – indeed, I’ve been the subject of unfounded accusations once or twice myself.  Thus, many judges have grown immune to these types of claims.  This action differs in that there’s a electronic trail of unethical conduct (unauthorized practice of law, deceptive advertising) created by the lawyer who has been the subject of the commentary.   So rather than offer extensive commentary, it’s most important to get these facts in front of the judge quickly and cleanly and let them speak for themselves.  Consider the analogy of cooking – when you’re using fresh ingredients, you don’t need much seasoning and when you’ve got damning facts, embellishment isn’t required.

DON’T, DON’T & DON’T ever suggest that a judge – any judge – was part of a conspiracy or “slandered” an attorney in the courtroom. Let’s just say that those kinds of allegations aren’t going to get your complaint anywhere – except on to the trash heap with the filings by pro se prisoners and the mentally delusional. On the other hand, if your opponent happens to make these allegations, by all means DO make note of them. (Motion at 5, referencing Rakofsky’s complaint);

DON’T ever make a representation to a court, either directly or by omission, that contradicts a recorded statement.  Here, Rakofsky’s complaint suggested that the judge ordered a mistrial at Rakofsky’s request due to conflicts between him and his client.  Let’s just say, however, that the trial transcript, does not support Rakofsky’s version.

That’s just a quick list for now – if you have any others you’d like to add, feel free to comment below.

  • http://twitter.com/BruceGodfrey Bruce Godfrey

    What I can do to join this suit as a defendant?  I view it as the professionalism equivalent of getting on Nixon’s Enemies List – allegedly Paul Newman’s proudest lifetime achievement. I’d copy and publish what you wrote about this fool except I don’t steal from bloggers!

  • guest

    Good advice all around. You’ve got some trailing spaces though! /ducks to avoid flying shoe

  • http://www.facebook.com/susangainen Susan Gainen

    Carolyn — I hope that you are prepping to teach a course on “The Un-Law of Rakofsky,” “10 steps to unwind your practice,” “15 things about your law practice that will make your Mother cringe,” etc. etc.

    Thanks for keeping us up to date.

  • Carolyn Elefant

    Susan,

    I am taking notes – the entire experience, from the plaintiff himself to the collaboration with my co-defendants and being the client as opposed to the lawyer – will provide fodder for many more posts after this is all over.

  • Legaleagle

    Carolyn,

    There are three types of lawsuits: 1) Those that you can’t lose, 2) Those that you can’t win, and 3) Those that require advocacy.  Yours falls into the first category.

    Rakofsky and his attorney and cohort Bourzaye are  trapped at the bottom of a legal sand pit, and cannot shovel themselves out. Their case falls into the second category above. Now you guys have Turkewitz, a seasoned litigator  who knows New York Practice, and Randazza, an expert on First Amendment issues representing you. Do you really need this overkill? It’s the equivalent of having two Iowa Class battleships, each using all 9 of its 16-inch guns broadside, to shell the collapsing sandpit.

    I guess it’s more exciting watching 2000 lb. shells explode than watching sand cave in by itself; but to each his own.

    By the way, according to the New York County Clerk’s website, contrary to your statement, no motion has been filed. http://iapps.courts.state.ny.us/iscroll/

    Once you know that there is no downside to this lawsuit, you can pull up a chair and watch the show.

  • ageorgialawyer

    A few more do’s and don’ts:

    1)Don’t overplead. I grew up with “prove what you plead.” I see many many minefields as the so called slander from the judge is tried to be linked up by P’s counsel.

    2)Do order a complete transcript of the underlying case: Which is what Defendants will do, and the reading of it will be interesting.  

    3)Do .. your homework. Forgetting to read the NY long arm statute, and not seeing that there is a defamation exception … oops! Do ..your homework … has P’s counsel read the cases regarding intentional infliction of emotional  harm in NY? I have. Taking each statement as true of each blogger quoted – no way yours could be considered to remotely reach the elements of that tort.

    4)Do your homework before filing – even presuming a Judgment, do you know that in several states, you still must domesticate the judgment if you get one from NY – and that means actually having to prove the entire case ALL OVER AGAIN.

  • VMS

    A motion was indeed filed yesterday, and the case was assigned to Justice Emily Goodman.  I have a feeling that Rakofsky and his attorney will not be happy.

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